The judgment in Identoba and Others v Georgia is a triumph for LGBT rights in Europe
Yesterday's judgment in Identoba and Others v Georgia, which I wrote about here, is a triumph for LGBT rights in Europe. For the first time, the European Court of Human Rights has recognized that 'hate crime' committed against individuals based on sexual orientation amounts to a violation of Article 3 taken in conjunction with Article 14 of the European Convention on Human Rights.
The significance of the judgment is that the Court has gone beyond recognizing that the peaceful assembly of LGBT associations is protected by Article 11 (freedom of assembly and association) taken in conjunction with Article 14 (prohibition of discrimination) of the Convention (see, for example, Alekseyev v Russia) and now also recognizes that homophobic attacks against those participating in such assemblies amounts to a breach of Article 3 in conjunction with Article 14.
Why is Article 3 taken in conjunction with Article 14 important for LGBT individuals?
The application of Article 3 to complaints about acts of hatred against LGBT people is important because Article 3 enshrines the absolute guarantee that:
'No one shall be subjected to torture or to inhuman or degrading treatment or punishment'.
Because Article 3 is written in unqualified terms, a state has no 'discretion' (no margin of appreciation) in meeting its obligations under it. Article 3 (taken in conjunction with Article 1) imposes on the state a positive obligation to ensure that all individuals within its jurisdiction are protected against all of the forms of ill-treatment that are prohibited, including ill-treatment that is administered by private individuals.
The positive obligation that Article 3 imposes means that states must take both preventative and investigative action in respect of any ill-treatment of individuals. This means that states must provide effective protection of an individual or individuals from the criminal acts of a third party, as well as to take reasonable steps to prevent ill-treatment which authorities know or ought to known about. In addition, states must conduct effective official investigations into alleged ill‑treatment even if such treatment has been inflicted by private individuals.
When investigating allegations of ill‑treatment, states are under a duty to take all reasonable steps to unmask possible discriminatory motives. This is where Article 14 of the Convention becomes relevant, because it prohibits discrimination in the 'enjoyment of the rights and freedoms set forth' in the Convention. As the Court said in Identoba and Others v Georgia:
The message of Identoba and Others v Georgia
Identoba and Others v Georgia sends a clear message to all of the 47 states contracted to the Convention about their obligation to adequately protect LGBT people from 'hate speech and serious threats', as well as 'physical abuse', that arouse in them 'fear, anxiety and insecurity' (para. 79).
In this respect, the judgment establishes that Article 3 requires states to ensure that there are both preventative and investigative legal measures in place to protect LGBT individuals who peacefully assemble in public. The Court has made clear that inadequate police protection from homophobic hatred will violate Articles 3 and 14. Similarly, a failure to adequately investigate allegations of hate crime will amount to a violation of the same Articles. In respect of the failure of the state to investigate allegations of ill-treatment based on homophobic hatred, the Court held that:
At its simplest, the Court's message is that states must have a robust framework of law enforcement that protects LGBT individuals from ill-treatment motivated by homophobia.
A significant milestone
Gay men and lesbians have been making complaints under Article 3 since 1955 about the inhuman and degrading treatment they have experienced because of their sexual orientation. 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, which concerned the ill-treatment of a gay male prisoner). Recognizing that homophobic hatred amounts to inhuman and degrading treatment in violation of Article 3 is a significant milestone in the long human rights journey that gay men and lesbians have travelled.
The significance of the judgment is that the Court has gone beyond recognizing that the peaceful assembly of LGBT associations is protected by Article 11 (freedom of assembly and association) taken in conjunction with Article 14 (prohibition of discrimination) of the Convention (see, for example, Alekseyev v Russia) and now also recognizes that homophobic attacks against those participating in such assemblies amounts to a breach of Article 3 in conjunction with Article 14.
Why is Article 3 taken in conjunction with Article 14 important for LGBT individuals?
The application of Article 3 to complaints about acts of hatred against LGBT people is important because Article 3 enshrines the absolute guarantee that:
'No one shall be subjected to torture or to inhuman or degrading treatment or punishment'.
Because Article 3 is written in unqualified terms, a state has no 'discretion' (no margin of appreciation) in meeting its obligations under it. Article 3 (taken in conjunction with Article 1) imposes on the state a positive obligation to ensure that all individuals within its jurisdiction are protected against all of the forms of ill-treatment that are prohibited, including ill-treatment that is administered by private individuals.
The positive obligation that Article 3 imposes means that states must take both preventative and investigative action in respect of any ill-treatment of individuals. This means that states must provide effective protection of an individual or individuals from the criminal acts of a third party, as well as to take reasonable steps to prevent ill-treatment which authorities know or ought to known about. In addition, states must conduct effective official investigations into alleged ill‑treatment even if such treatment has been inflicted by private individuals.
When investigating allegations of ill‑treatment, states are under a duty to take all reasonable steps to unmask possible discriminatory motives. This is where Article 14 of the Convention becomes relevant, because it prohibits discrimination in the 'enjoyment of the rights and freedoms set forth' in the Convention. As the Court said in Identoba and Others v Georgia:
'Treating violence and brutality with a discriminatory intent on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention' (para. 67).The combination of Articles 3 and 14 therefore provide a framework through which to robustly assess whether a state has taken sufficient measures to protect LGBT individuals from 'torture' or 'inhuman and degrading treatment' administered by those who are motivated by homophobic hatred.
The message of Identoba and Others v Georgia
Identoba and Others v Georgia sends a clear message to all of the 47 states contracted to the Convention about their obligation to adequately protect LGBT people from 'hate speech and serious threats', as well as 'physical abuse', that arouse in them 'fear, anxiety and insecurity' (para. 79).
In this respect, the judgment establishes that Article 3 requires states to ensure that there are both preventative and investigative legal measures in place to protect LGBT individuals who peacefully assemble in public. The Court has made clear that inadequate police protection from homophobic hatred will violate Articles 3 and 14. Similarly, a failure to adequately investigate allegations of hate crime will amount to a violation of the same Articles. In respect of the failure of the state to investigate allegations of ill-treatment based on homophobic hatred, the Court held that:
'it was essential for the relevant domestic authorities to conduct the investigation [...], taking all reasonable steps with the aim of unmasking the role of possible homophobic motives for the events in question. The necessity of conducting a meaningful inquiry into the discrimination behind the attack [...] was indispensable given, on the one hand, the hostility against the LGBT community and, on the other, in the light of the clearly homophobic hate speech uttered by the assailants during the incident. The Court considers that without such a strict approach from the law‑enforcement authorities, prejudice-motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence to or even connivance with hate crimes' (para. 77).The Court's language is extremely clear and sends a strong and powerful message to all contracting states: when there are negative attitudes towards sexual minorities in society and there is a known likelihood of homophobic abuse, then law-enforcement authorities are under a 'compelling positive obligation' (para. 80) to protect LGBT individuals. Furthermore, states have a procedural obligation to investigate homophobic hatred 'with particular emphasis on unmasking the bias motive' (para. 80). As the Court said, if states do not take such action then 'it would be difficult [...] to implement measures aimed at improving the policing of [...] peaceful demonstrations in the future' (para. 80).
At its simplest, the Court's message is that states must have a robust framework of law enforcement that protects LGBT individuals from ill-treatment motivated by homophobia.
A significant milestone
Gay men and lesbians have been making complaints under Article 3 since 1955 about the inhuman and degrading treatment they have experienced because of their sexual orientation. 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, which concerned the ill-treatment of a gay male prisoner). Recognizing that homophobic hatred amounts to inhuman and degrading treatment in violation of Article 3 is a significant milestone in the long human rights journey that gay men and lesbians have travelled.
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