JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA, LUBARDA, GUERRA MARTINS AND ZÜND JOINED BY JUDGE KŪRIS

1. We fully agree with the finding that the measures taken against the late applicant’s book did not pursue any legitimate aim and that there has therefore been a violation of Article 10 of the Convention.

2. However, we are unable to join the majority in concluding that there is no need to examine separately the applicant’s complaint under Article 14 of the Convention taken in conjunction with Article 10. We firmly believe that discrimination is a fundamental aspect of this case and that it should have therefore been addressed.

3. As part of its reasoning relating to the discrimination complaint, the majority states that “the impugned measures were principally directed at the LGBTI content of the expression rather than the author of the expression herself” (see paragraph 221 of the judgment). We do not question this characterisation of the facts. Indeed, considering the aim pursued by those measures and particularly their legal basis, which are analysed in great detail in paragraphs 189-200 of the judgment – to which analysis we fully subscribe – we have no reason to doubt that the Lithuanian authorities would have applied the same restrictions to a similar book written by a heterosexual author. Even if the subjective impact of such restrictions on someone who is homosexual is greater than on someone who is heterosexual, the crucial issue in this case is the content of the measures.

4. That being so, we believe that this case provided the Court with an invaluable opportunity – which has sadly been missed – to address one of the ways in which homophobic prejudice is often manifested nowadays and to clarify the approach to be taken in cases where discriminatory measures are taken against specific content, rather than its author.

5. In this opinion, we will firstly take a look at the approach which the Court has taken to date in cases concerning discrimination on the grounds of sexual orientation. We will then present our arguments in favour of revisiting that approach in cases which concern content-based restrictions. Lastly, we will outline how we would have liked to see the proposed approach applied in the present case.

6. In cases in which the applicants allege that they have been personally discriminated against on the grounds of their sexual orientation, the Court typically begins its analysis by examining whether the individual applicant has been treated differently from persons in the same or a relevantly similar situation because of this characteristic (see, for example, Salgueiro da Silva Mouta v. Portugal , no. 33290/96, §§ 28-36, ECHR 1999-IX; Karner v. Austria , no. 40016/98, §§ 34-42, ECHR 2003-IX; and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, §§ 78-92, ECHR 2013 (extracts), all concerning Article 14 of the Convention read in conjunction with Article 8).

7. However, the Court has taken a slightly different approach in cases which concerned restrictions on publications or assemblies aimed at promoting the rights of sexual minorities. In such cases, the focus has been less on the sexual orientation of the applicants (the authors of the publications or the organisers of the assemblies) and more on the purpose which they sought to pursue by exercising their rights to freedom of expression, association and assembly. Thus, the Court has examined whether the impugned restrictions were based on hostility to the pro-LGBTI message of the publications or assemblies in question rather than to the sexual orientation of the applicants (see BÄ…czkowski and Others v. Poland , no. 1543/06, § 100, 3 May 2007; Bayev and Others v. Russia , nos. 67667/09 and 2 others, §§ 90 ‑ 91, 20 June 2017; Zhdanov and Others v. Russia , nos. 12200/08 and 2 others, §§ 180-81, 16 July 2019; and Berkman v. Russia , no. 46712/15, §§ 55 ‑ 57, 1 December 2020). To the best of our knowledge, there has been only one case in which the Court has explicitly stated that the prohibition on holding gay pride marches amounted to discrimination against the participants in those events on the grounds of their sexual orientation (see Alekseyev v. Russia , nos. 4916/07 and 2 others, § 109, 21 October 2010 (emphasis added)).

8. We would like to draw particular attention to the Court’s judgment in Berkman (cited above), which concerned the failure by the domestic authorities to protect the participants in Coming Out Day from violent counter-demonstrators, and the applicant’s arrest during that event. In that case, the applicant did not allege that she had been discriminated against on the grounds of her sexual orientation, but on the grounds of her support for LGBTI people (see Berkman , cited above, § 1), and her actual sexual orientation was not mentioned anywhere in the Court’s judgment. The Court held that the applicant had “publicly positioned herself with the target group of the sexual prejudice” (ibid., § 55) and found that the domestic authorities had failed to comply with their positive obligations under Article 11 of the Convention, taken alone and in conjunction with Article 14 (ibid., § 58).

9. Moreover, in a number of cases the Court has accepted that associations which sought to promote the rights of sexual minorities could be victims of discrimination in their own right (see Genderdoc-M v. Moldova , no. 9106/06, § 54, 12 June 2012; Identoba and Others v. Georgia , no. 73235/12, § 48, 12 May 2015; Association ACCEPT and Others v. Romania , no. 19237/16, § 146, 1 June 2021; and Women’s Initiatives Supporting Group and Others v. Georgia , nos. 73204/13 and 74959/13, §§ 83-84, 16 December 2021). Needless to say, associations do not themselves have any sexual orientation, and the Court did not examine whether all or most of the members of the applicant associations identified as belonging to sexual minorities, or whether the impugned restrictions had been applied because of the sexual orientation of the members. Instead, the fact that the associations had been subjected to restrictions of their rights on the grounds of the pro-LGBTI message which they wished to convey appeared to be sufficient for the Court to consider them to be victims of discrimination and to find violations of Article 14 of the Convention taken in conjunction with Article 10 or 11.

10. In the light of the evolution of European anti-discrimination law, both in general [3] and regarding the protection of sexual minorities in particular, [4] in our view there is a need for the Court to clarify and update the approach to be taken in cases which concern restrictions on expression aimed at promoting the rights of sexual minorities where the individual’s own sexual orientation is not as such the basis for the restriction, that is to say, the ground on which the individual is treated less favourably is not a protected personal characteristic.

11. The time has come to develop the Court’s case-law by bringing pro-LGBTI views as such within the ambit of protection against discrimination. The Court should explicitly recognise that measures which seek to restrict the dissemination of pro-LGBTI information or ideas amount to discrimination against the authors or publishers, without it needing to be shown that the sexual orientation of the complainants was also a factor. This approach, which dissociates the finding of discrimination from the personal characteristics of the applicant, would be fully in keeping with the spirit of the Convention and its underlying values, such as the pluralism, tolerance and broadmindedness which are hallmarks of a democratic society, genuine recognition of, and respect for, diversity, and respect for all de facto family ties. We also believe that this approach finds support in the Court’s case-law, as presented in paragraphs 7-9 above.

12. It would be artificial to suggest that restricting the expression of pro-LGBTI views is based on something other than prejudice against the LGBTI community as a group. The discriminatory intent and purpose of such measures cannot be concealed, and their inevitable effect is to further the stigmatisation and social exclusion of sexual minorities (the third-party interveners also presented arguments to that effect, which are summarised in paragraphs 169, 172 and 173 of the judgment). Opposition to the dissemination of information or ideas which seek to promote the rights of sexual minorities reflects a predisposed bias on the part of the heterosexual majority against the homosexual minority, which the Court has consistently rejected (see, among many other authorities, Bayev and Others , cited above, § 68, and the cases cited therein; a similar position has also been expressed by the Parliamentary Assembly of the Council of Europe and by the European Parliament – see paragraphs 105, 106 and 113 of the judgment).

13. Nor can it be overlooked that one of the ways in which homophobic prejudice is often manifested nowadays is by adopting measures aimed at restricting attempts to advocate for the rights of sexual minorities or to change social attitudes towards them – some examples of such measures can be seen in paragraphs 111 and 113 of the judgment. Therefore, affirming that discrimination on the grounds of sexual orientation does not need to be linked to the author’s personal characteristics would enable the Court to recognise the reality of such discrimination and to adequately address it in its various forms.

14. We wish that the Grand Chamber had seized the opportunity to clarify and confirm that, when examining restrictions against any type of expression which is aimed at promoting the rights of sexual minorities, the key question is whether the main reason for such restrictions was the content of the expression. In line with that approach, were it established that a publication or other type of expression was restricted primarily or in reality because of its pro-LGBTI content, that would be sufficient to establish discrimination on grounds of sexual orientation, including where the individual was not, or did not identify as, part of a sexual minority. If the facts of a case were such as to indicate that the individual’s actual or perceived sexual orientation also accounted for the restriction of the enjoyment of his or her freedom of expression, that would make the discrimination on grounds of sexual orientation all the more flagrant.

15. It should be noted that the present case was not the first one in which the Court was asked to examine measures restricting the dissemination of pro-LGBTI views. In Lee v. the United Kingdom ((dec.), no. 18860/19, 7 December 2021), the Court was faced with the refusal of a bakery to provide the applicant with a cake containing a message in support of gay marriage, on account of the owners’ strong religious beliefs, and the United Kingdom Supreme Court found no discrimination on the grounds of sexual orientation. Notably, the domestic court rejected the proposition that, because the reason for less favourable treatment “ha[d] something to do with the sexual orientation of some people”, the less favourable treatment was “on grounds of” sexual orientation. However, Mr Lee’s application before the Court was declared inadmissible for failure to exhaust domestic remedies, the Court finding that he had not invoked his Convention rights expressly at any point in the domestic proceedings. As a result, the Court did not engage with the merits of his complaints under Articles 8, 9 and 10, both alone and in conjunction with Article 14 of the Convention.

16. The cases of Lee and MacatÄ— , as well as the developments in certain other member States (see paragraphs 111, 113, 127 and 171 of the judgment), may be an indication that more cases concerning measures which seek to restrict the dissemination of pro-LGBTI content will reach the Court in the foreseeable future. It is our hope that, when examining the next such case, the Court will take a bolder direction and duly acknowledge such measures as the discrimination that they are.

17. In the present judgment, it was found that measures which restrict children’s access to information about same-sex relationships solely on the basis of sexual orientation “demonstrate that the authorities have a preference for some types of relationships and families over others – that they see different-sex relationships as more socially acceptable and valuable than same-sex relationships, thereby contributing to the continuing stigmatisation of the latter. Therefore, such restrictions, however limited in their scope and effects, are incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society” (see paragraph 215 of the judgment).

18. Indeed, in its findings under Article 10 of the Convention, the Grand Chamber rebuked in strong and unambiguous terms any measures which seek to restrict the dissemination among children of content on the sole grounds that it presents LGBTI individuals or their families in a positive or neutral light – in other words, in a manner comparable to that in which heterosexual persons or different-sex families are usually presented in similar literature.

19. However, we fail to understand how, after concluding that the impugned measures sought to limit children’s access to the fairy tales for the sole reason that they presented same-sex couples as being essentially equivalent to different-sex couples, the Grand Chamber could then hold that it was not necessary to examine the applicant’s complaint under Article 14 of the Convention taken in conjunction with Article 10. The above reasoning of the Grand Chamber clearly demonstrates, in our view, that discriminatory attitudes against the LGBTI community as a group constituted a fundamental aspect of the present case, which should accordingly have been addressed (see Oršuš and Others v. Croatia [GC], no. 15766/03, § 144, ECHR 2010, and the cases cited therein).

20. The judgment appears to suggest that the decision not to examine the discrimination complaint resulted, at least in part, from the belated submission of relevant arguments by the applicant’s representative: it was only at the oral hearing, and not in the written pleadings, that the applicant’s representative developed the argument that Article 14 of the Convention, taken in conjunction with Article 10, applied to discrimination directed at the content of a message rather than at any personal characteristic of the author (see paragraph 221 of the judgment). However, we do not consider that that was a sufficient reason for disregarding those arguments. Firstly, since the interpretation of both provisions is within the competence of the Court, there was no need for express argument by the parties on this point, and secondly and more importantly, we consider that such an examination by the Court would have been justified in view of the importance of the issues raised in the present case. We would also note that in the previous cases concerning content-based discrimination in which violations of Article 14 of the Convention were found (see the references in paragraphs 7-9 above) the Court did not seem to require the applicants to expressly argue the question of applicability of that provision, and we do not see why the present case should be treated differently.

21. Had the Grand Chamber chosen to revisit its approach in the manner which we outlined in paragraphs 10-14 above, it should have found a violation of Article 14 of the Convention taken in conjunction with Article 10. Indeed, the Government did not seek to advance any grounds on which restricting children’s access to pro-LGBTI content could be justified (in contrast to, for example, Bayev and Others , cited above, where the respondent Government argued that restrictions on information about homosexuality were justified by the considerations of public morality, protection of health, and protection of the rights of children – arguments which the Court emphatically dismissed). Therefore, having found that the measures imposed on the applicant’s book were based on its pro-LGBTI content, and in the absence of any possible justification presented by the Government, it should have been concluded that in the exercise of her right to freedom of expression the applicant suffered discrimination on the grounds of sexual orientation.

22. For all the aforementioned reasons, we respectfully disagree with the finding of the majority regarding the applicant’s complaint under Article 14 of the Convention taken in conjunction with Article 10. We believe that that complaint should have been examined and that a violation of those provisions should have been found.

[1] The research report initially also included information concerning the national legal framework of the Russian Federation, which ceased to be a member of the Council of Europe on 16 March 2022 and a High Contracting Party to the Convention on 16 September 2022.

[2] The same is true for the former member State the Russian Federation – see footnote 1 above.

[3] Mark De Vos (2020) , “The European Court of Justice and the march towards equality in European Union anti-discrimination law”, International Journal of Discrimination and the Law , vol. 20 (I), pp. 62 et seq.

[4] Robert Wintemute , “Sexisme et LGBT-phobie dans le cadre de la jurisprudence de la CourEDH et de la CJEU”, in Daniel Borrillo & Félicien Lemaire (eds), Les discriminations fondées sur le sexe, l’orientation sexuelle et l’identité de genre , Paris, L’Harmattan, 2020, pp. 165 et seq., and Paul Johnson , “LGBT Rights at the Council of Europe and the European Court of Human Rights”, in Jill Marshall (ed.), Personal Identity and the European Court of Human Rights , London, Routledge, 2022, pp. 99 et seq.