On Wednesday 20th March I reported that the European Court of Human Rights had delivered its judgment in Kasymakhunov and Saybatalov v Russia. The case involved a complaint by two individuals who were members of Hizb ut-Tahrir al-Islami (The Party of Islamic Liberation) about criminal convictions which, they alleged, violated a range of their Convention rights. A key aspect of the complaint was the allegation that their conviction constituted a violation of their freedoms of religion, expression and association.
It is worth considering the Court's judgment on the issues raised under Articles 9, 10, and 11 of the Covention given Hizb ut-Tahrir al-Islami's public proclemations on homosexuality. For instance, the party have declared that 'Homosexuality is an Evil that Destroys Societies!' and stated that the development of gay and lesbian rights is the result of 'a political system where man makes the law' (rather than god).
Although the Court did not consider the issue of homosexuality specifically, it did pay particular attention to whether the general ambitions of Hizb ut-Tahrir al-Islami could be protected under Articles 9-11 of the Convention. The Court observed that: 'It is significant that the activities of Hizb ut-Tahrir are not limited to promoting religious worship and observance in private life of the requirements of Islam. They extend outside the sphere of individual conscience and concern the organisation and functioning of society as a whole. Hizb ut-Tahrir clearly seeks to impose on everyone its religious symbols and conception of a society founded on religious precepts' (para. 112).
In light of this, the Court held that 'the dissemination of the political ideas of Hizb ut-Tahrir by the applicants clearly constitutes an activity falling within the scope of Article 17 of the Convention' (para. 113).
Article 17 of the Convention provides that: 'Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention'.
The Court therefore held that: 'The applicants are essentially seeking to use Articles 9, 10 and 11 to provide a basis under the Convention for a right to engage in activities contrary to the text and spirit of the Convention. That right, if granted, would contribute to the destruction of the rights and freedoms set forth in the Convention and referred to above' (para. 113).
This is important is respect of the existence of homophobic hate-speech which is often claimed by those who deploy it to be the expression of religious conviction that should be protected under Articles 9-11 of the Convention.