Tuesday, 12 May 2015

Historic judgment in the European Court of Human Rights upholds Article 3 complaint about 'hatred' on the grounds of sexual orientation

A chamber of the Fourth Section of the European Court of Human Rights has today issued the judgment in Identoba and Others v Georgia. The judgment is a historic step forward for gay and lesbian rights. The Court has recognised, for the first time, that violent and abusive treatment of individuals assembling in public to peacefully demonstrate about issues relating to sexual orientation amounts to a violation of Article 3 of the European Convention on Human Rights. 

Background

The complaint, brought by a non-govermental organisation and a group of individuals, concerned a peaceful march organised and attended by the applicants. During the march the individual applicants were threatened by counter-demonstrators – members of two religious groups – who outnumbered them. The counter-demonstrators shouted insults at the marchers – calling them, among other things, 'perverts' and 'sinners' – and blocked their passage and encircled them. Eventually the counter-demonstrators attacked several of the applicants physically, leaving at least three of them with injuries which had to be treated. 

According to the applicants, the police remained relatively passive in the face of the violence. Four of the applicants were arrested and briefly detained and/or driven around in a police car. 

After the demonstration, the NGO and 13 of the individual applicants filed several criminal complaints, requesting in particular that criminal investigations be launched into the attacks against them by the counter-demonstrators and into the acts and omissions of the police officers who had failed to protect them. Two investigations into the injuries sustained by two of the applicants were opened, which remain pending. Two of the counter-demonstrators, who had been arrested for a minor breach of public order, were given a fine of the equivalent of 45 euros (EUR) each.

The Article 3 taken in conjunction with Article 14 complaints

Article 3 of the Convention provides:

'No one shall be subjected to torture or to inhuman or degrading treatment or punishment.'

The Court considered the complaints of thirteen individual applicants (but not the NGO's complaint) under Article 3 taken in conjunction with Article 14 (prohibition of discrimination). The individuals complained under Articles 3 and 14 that the domestic authorities had failed to protect them from the violent attacks perpetrated by the counter-demonstrators during their peaceful march and to investigate effectively the incident by establishing, in particular, the discriminatory motive of the attackers.

The Court considered whether the attack on the applicants reached the minimum threshold of severity under Article 3 taken in conjunction with Article 14 of the Convention. In considering this, the Court said that it must bear in mind 'the various reports on the rights of lesbian, gay, bisexual and transgender (LGBT) people in Georgia' and acknowledge 'that the [LGBT] community finds itself in a precarious position' (§ 68). Against this social context the Court examined the clashes between the participants of the march and representatives of the two religious groups – Orthodox Parents’ Union and Saint King Vakhtang Gorgasali’s Brotherhood – and noted the that the religious groups were 'insulting in the language used, spitefully calling the [LGBT marchers] “fagots”, “perverts” and so on' (§ 69). In light of this, the Court stated that it considered
'that the question of whether or not some of the applicants sustained physical injuries of certain gravity becomes less relevant. All of the thirteen individual applicants became the target of hate speech and aggressive behaviour, which facts are not in dispute by the Government [...] Given that they were surrounded by an angry mob that outnumbered them and was uttering death threats and randomly resorting to physical assaults, demonstrating the reality of the threats, and that a clearly distinguishable homophobic bias played the role of an aggravating factor [...], the situation was already one of intense fear and anxiety. The aim of that verbal – and sporadically physical – abuse was evidently to frighten the applicants so that they would desist from their public expression of support for the LGBT community [...]. The applicants’ feelings of emotional distress must have been exacerbated by the fact that the police protection which had been promised to them in advance of the march was not provided in due time or adequately' (§ 70).
On this basis, the Court concluded that the treatment of the applicants 'must necessarily have aroused in them feelings of fear, anguish and insecurity' (§ 71) which were not compatible with respect for their human dignity and reached the threshold of severity within the meaning of Article 3 taken in conjunction with Article 14 of the Convention.

The Court examined whether the authorities provided due protection to the applicants and whether an effective investigation was conducted into the incident, deciding in both cases that they had not. In light of this, the Court held, by six votes to one, that there has been a violation of Article 3 taken in conjunction with Article 14 of the Convention with respect to the individual applicants.

Judge Wojtyczek (Poland) dissented citing, inter alia, the standard of evidence relating to the events and inconsistencies in the Court's application of Article 3. 

The Article 11 taken in conjunction with Article 14 complaints

The Court considered the applicants' complaints relating to freedom of expression (Article 10) and freedom of association (Article 11) together under Article 11 taken in conjunction with Article 14. 

The Court concluded
'that the domestic authorities failed to ensure that the march [...], which was organised by the first applicant and attended by the thirteen individual applicants [...], could take place peacefully by sufficiently containing homophobic and violent counter-demonstrators. In view of those omissions, the authorities fell short of their positive obligations under Article 11 taken in conjunction with Article 14 of the Convention' (§ 100).
The Court held unanimously that there was no need to examine the complaint under Article 10 of the Convention, and that there had been a violation of Article 11 taken in conjunction with Article 14 of the Convention.

Significance of the judgment

Identoba and Others v Georgia is significant because it continues to confirm the Court's approach to upholding complaints from applicants under Articles 11 and 14 of the Convention about interferences with the right to freedom of peaceful assembly and association. 

However, the most significant aspect of the judgment is that it brings public expressions of hatred against individuals on the grounds of sexual orientation into the scope of Article 3. This is a historic step forward in recognising that public acts of hatred against sexual minorities amounts to a form of 'inhuman or degrading treatment' that Article 3 prohibits.

Moreover, in bringing public attacks on the grounds of sexual orientation into the scope of Article 3, the Court has stated that treatment may be regarded as 'inhuman or degrading' even if it does not amount to physical violence. As the Court stated, the individual applicants were subject to 'violence, which consisted mostly of hate speech and serious threats, but also some sporadic physical abuse in illustration of the reality of the threats' and this 'rendered the fear, anxiety and insecurity experienced by all thirteen applicants severe enough to reach the relevant threshold under Article 3 read in conjunction with Article 14 of the Convention' (§ 79).

The message is now clear: domestic authorities that do not protect individuals from public attacks relating to sexual orientation, in the form of hate speech and physical violence, fail to fulfil their positive obligations under Article 3 of the Convention. 

This is only the second time that the Court has upheld a complaint relating to sexual orientation discrimination under Article 3 taken in conjunction with Article 14 (the first time was in 2012 in X v Turkey). Given that gay men and lesbians have been making complaints under Article 3 since 1955, in an attempt to show that sexual orientation discrimination amounts to inhuman and degrading treatment, today's judgment is a significant milestone. 




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