A.K. v Russia [2024]

Background:
On October 7, 2011, the applicant Ms A.K., a citizen of the Russian Federation, joined one of the state schools in St. Petersburg as a music teacher. On November 25, 2014, she was informed that the director of the educational facility and a representative of the district municipal authorities arranged a meeting based on the complaint made by Mr I, who was a representative from the NGO “Parents of Russia” (Родители России). The submitted ‘dossier’ included information on her private life, including assumptions about the applicant’s sexual orientation and ten pages of screenshots of Ms A.K.’s social media account. It was stated that she was openly expressing affection with other women in the pictures, which was regarded as ‘incompatible’ with her profession as an educator, according to Mr I.

On December 8 of the same year, the applicant submitted written comments, indicating that: (1) there were no previous complaints about her work performance as a teacher, (2) she had never promoted any sexual orientation, and (3) the actions taken against her were discriminatory. Nevertheless, on the same day the applicant’s contract was terminated for committing “immoral acts” and “negatively impacting children and the school’s reputation,” based on paragraph 8 of Article 81 of the Labour Code of the Russian Federation.

Subsequently, a group of parents submitted a collective letter to the principal, supporting Ms A.K.’s dismissal, highlighting that their children were exposed to “harmful information” that promoted “non-traditional sexual relations.” The applicant claimed that her dismissal was discriminatory and based on her sexual orientation when she filed a lawsuit to contest it. She made it clear that her social media posts were personal and were never brought up at work. The school justified the termination by stating that the applicant’s social media posts depicted “lesbian scenes” and that she played in a band at a club, both of which they claimed were incompatible with her position as a teacher.

Legal Issues:
The main legal issues of the case are listed as follows:

1. Interference with private life: This is based on Article 8 of the European Convention of Human Rights and entertains the issue of whether the complaints compiled by the NGO “Parents of Russia” (Родители России) in the “dossier” violated her right to respect for private life. Additionally, it discusses the issue of proportionality of the Government’s actions against Ms A.K. and whether her social media activity threatens societal morals.
2. Discrimination based on sexual orientation: This issue has been reviewed based on Article 14 in conjunction with Article 8 of the Convention. The main questions are that the decision to dismiss Ms A.K. has been made because of the claims regarding her sexuality, and whether the treatment of the applicant was any different from the other teachers at the aforementioned educational institution. Moreover, the ECtHR assessed whether the Government’s justification of the applicant’s dismissal based on “immoral demeanour” and “ethical ideals” was lawful or, once again, invalid and rooted in discrimination or even intolerance of her sexual orientation.
3. Disproportionality of the dismissal: Since a dismissal is considered one of the most restrictive measures, the question of proportionality has been raised. It has also been evaluated in relation to other possible restrictive measures, such as warning or suspension that could have been implemented instead of immediate termination of her employment contract. Lastly, whether Ms A.K.’s private photos warranted such a severe sanction.

Proceedings:
The case proceeded to the Grand Chamber of the European Court of Human Rights. The applicant contended in her submissions that her firing was unjustified in a democratic society and that it infringed upon her rights to privacy (Article 8) and non-discrimination (Article 14) derived from the ECHR. She acknowledged that unethical behavior outside the classroom could legitimately result in the termination of a teacher’s contract, but she denied that her actions (posting pictures of herself with other women, including her girlfriend) were unethical in any way. She also maintained that her conduct, including a middle-finger gesture she made in one of the pictures, did not amount to immorality or unethical behavior that could justify such a harsh punishment as termination. She asserted that her dismissal was solely due to her sexual orientation, suggesting that her same-sex relationship was considered harmful to children, and that the images were not sexually explicit.
The Government, on the other side, defended the dismissal, claiming that it was appropriate and justified given the applicant’s actions, which they described as immoral and unethical. Given the unique moral and ethical obligations of teachers, particularly those who work with children, they asserted that the aforementioned images, in particular the gesture and expression of affection, would have resulted in the dismissal of any teacher, regardless of sexual orientation. Even though the images were private on her social media account, the government contended that the applicant should have known the repercussions of her acts as a moral role model for pupils. They maintained that the applicant’s sexual orientation was not the reason for her termination, but rather behavior that compromised her position as a teacher.

In examining the case, the ECtHR applied several established jurisprudential principles. Firstly, it emphasized that in a “democratic society,” the values of pluralism, tolerance, and recognition of and respect for diversity are crucial, as per Chassagnou and Others v. France [GC] ECHR 1999‑III, S.A.S. v. France [GC] ECHR 2014, and Gorzelik and Others v. Poland [GC] ECHR 2004-I. The modern democratic society is built on interaction between people of diverse identities and beliefs, which is essential for social solidarity. Secondly, the concept of “private life” under Article 8 is broad and covers various aspects, including sexual orientation and sexual life, (S. and Marper v. the United Kingdom [GC] ECHR 2008) which is seen as a fundamental part of one’s personal identity. The ECtHR maintained that interference with such aspects of private life requires “particularly serious reasons” that could possibly satisfy the requirements of Article 8 § 2. Disputes regarding employment, especially those involving a person’s social and professional reputation, can also fall within the scope of Article 8, based on Denisov v. Ukraine [GC] 25 September 2018. The ECtHR has previously established that teachers have a special influence on students, and restrictions on their private lives may be justifiable if they affect their professional role. However, limitations of such a kind must be carefully balanced to avoid disproportionate interference with an individual’s rights. Thirdly, Article 14, which prohibits discrimination, has no independent existence, since it only applies to “the enjoyment of the rights and freedoms.” Overall, the general principles under Article 14 applied in the case have been previously summarized in the case of Vallianatos and Others v. Greece [GC] ECHR 2013. The ECtHR has consistently held that sexual orientation is protected under Article 14, and differences in treatment based solely on this ground require “particularly convincing and weighty reasons.”

Judgment:
When applying the aforementioned principles to the case, the ECtHR found that the applicant’s dismissal constituted a disproportionate interference with her rights under Article 8. Both parties agreed that her dismissal interfered with her private life. The ECtHR also accepted that the legitimate aim pursued by the Government was to protect societal morals. However, the ECtHR emphasized that the applicant’s conduct was not obscene or sexually explicit and could not reasonably be seen as immoral. The national authorities of the Russian Federation were clearly focused on Ms A.K.’s sexuality, as demonstrated by their references to “lesbian scenes” and “non-traditional sexual orientation”; thus, the ECtHR concluded that her dismissal was based on discrimination of her sexual orientation.

The ECtHR also found that the sanctions imposed on the applicant were too severe. It emphasized that dismissal was a disproportionate response to the applicant’s conduct, as there are other disciplinary measures that could be considered instead of the one imposed, including a warning or suspension. Additionally, the ECtHR pointed out that the Government failed to properly look into the context in which the gesture and photos were taken. The ECtHR came to a unanimous decision that Ms A.K.’s application was admissible, and the Government was found to be in breach of both Article 8 and Article 14 in conjunction with Article 8. The ECtHR found the actions of the Government not only disproportionate but also discriminatory and driven by prejudices based on the applicant’s sexuality and the life that she leads in private. As per damages and costs and expenses, the ECtHR awarded Ms A.K. EUR 6,500 in pecuniary damages, the previously claimed EUR 10,000 in non-pecuniary damages. Costs and expenses were measured up to EUR 6,000, with interest to be paid if not settled by the expiry of three months. The rest of the applicant’s claims have been dismissed for just satisfaction, under Article 41 of the Convention.

Commentary:
The case did not significantly impact the key case law of the ECtHR, nor did it affect domestic law in Russia. Even though it has been previously summarized and cited by other websites and sources, it did not gain any particular recognition in the media. There are still ongoing issues, particularly as Russia continues to enact laws that infringe on citizens’ private lives and target individuals based on their sexual orientation. The Russian anti-LGBT law was signed into law by Vladimir Putin on June 30, 2013, and since then the laws around this matter have become increasingly stringent, and the rulings of the ECtHR have little impact on them. For instance, on October 20, 2022, a group of deputies from the State Duma drafted a bill titled “On the Prohibition of LGBT Propaganda” and on November 24 of the same year it was adopted in its third reading. A few days later, on December 5, 2022, the document was signed into law by President Vladimir Putin. Additionally, on November 30, 2023, the Supreme Court of the Russian Federation identified the “International LGBT Public Movement” as an extremist organisation.

Written by Elena Kirakozova