Sunday, 16 July 2017

Protection from "hate speech" - Beizaras and Levickas v Lithuania

The Fourth Section of the European Court of Human Rights has communicated the case of Beizaras and Levickas v Lithuania. The case concerns the alleged failure of domestic authorities to adequately investigate incitement to hatred and violence against LGBT people in general and against the applicants in particular.

The applicants, Pijus Beizaras and Mingirdas Levickas, are a same-sex couple. At the start of their relationship, Mr Beizaras posted a picture on his Facebook profile of him kissing Mr Levickas. The picture was accessible to the general public. The picture was widely viewed and attracted many comments which, Mr Beizaras and Mr Levickas claim, were aimed at inciting hatred and violence against LGBT people in general and threatening them personally. 

Examples of the comments are: 
“Faggots should be burned (Sudeginti piderastus)”  
“You both should be thrown into the gas chambers (I duju kameras abu)” 
"You are fucking gays – you should be exterminated (Gėjai jūs supisti, jus naikinti nx.)”  
“... faggots... such should be hit into the head (... pydarasai... Pisti y galva tokiems reikia)” 
“You faggots should not post such photographs; such faggots should be given a good kicking (Pydarai jūs nekelkit fotkes tokias, suspardyt tokius pidarastus)”  
“Kill them! (Žudyt!)”
The domestic authorities would not undertake a criminal investigation of the comments, despite the Lithuanian Criminal Code prohibiting “Incitement against Any National, Racial, Ethnic, Religious or Other Group of People”. This decision was upheld by the domestic courts, who regarded Mr Beizaras and Mr Levickas to have engaged in “eccentric behaviour”.

The Court has issued the following questions to the parties:

  1. Has there been a violation of Article 14 of the Convention, taken in conjunction with Article 8 thereof, on account of the domestic authorities’ decision to discontinue the criminal investigation concerning the comments on the first applicant’s Facebook social network page (see Vejdeland v. Sweden, no. 1813/07, § 55, 9 February 2012; also see, mutatis mutandisIdentoba and Others v. Georgia, no. 73235/12, §§ 70 and 71, 12 May 2015, and R.B. v. Hungary, no. 64602/12, §§ 39 and 40, 12 April 2016)?
  2. Have the applicants suffered discrimination on the grounds of their sexual orientation, in breach of Article 14 of the Convention, taken in conjunction with Articles 8 and 13? The Court refers to the applicants’ grievance about the Lithuanian authorities’ predisposed bias against a homosexual minority (see, mutatis mutandisSmith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 121, ECHR 1999‑VI; also see Identoba and Others, cited above, § 68), given that the two applicants’ same-sex kiss picture had been interpreted by those authorities as “eccentric behaviour” and as “attempt to deliberately tease or shock individuals with different views or to encourage the posting of negative comments” which, in turn, also led those authorities to discontinue the criminal investigation.

Thursday, 13 July 2017

Homophobia in the European Court of Human Rights

The Dissenting Opinion of Judge Dedov (the judge for the Russian Federation at the European Court of Human Rights) in the case of Bayev and Others v Russia has certainly raised some eyebrows. 

In dissenting from the majority judgment in Bayev, which strongly condemns legal provisions in Russia that prohibit the “propaganda of non‑traditional sexual relations aimed at minors”, Judge Dedov's remarks have been called, amongst other things, "outrageously homophobic" and "indefensible to the Western mentality".

I certainly agree with those who condemn Judge Dedov's stated views on homosexuality - which include offensive (but predictable) remarks linking homosexuality and paedophilia - but I also welcome Judge Dedov making his views explicit. 

Given that the European Court of Human Rights (and former European Commission of Human Rights) has always been, and continues to be, comprised of some individuals who are hostile to the development of LGBT human rights, I think it is important that those individuals make their views clear.

We usually only see, as in this case, homophobia explicitly expressed when a sexual orientation complaint is upheld by a majority and a judge feels motivated to voice his (it is usually "his", not "her") hostility. But such explicit expressions of homophobia should be welcomed, because knowing that such homophobia exists in the Court helps us to understand why sexual orientation discrimination complaints are often rejected. 

If there was no homophobia in Strasbourg, wouldn't the complaints by same-sex couples about the blanket exclusion from marriage in some contracting states have succeeded? Of course, Strasbourg judgments contain many politely formulated legal reasons when complaints about marriage discrimination based on sexual orientation are rejected, but only the most naive person would rule out that such reasons are "contaminated" (to use one of the Court's terms) by homophobia. 

Judge Dedov's expression of homophobic ideas in the Court is not unique. In fact, Judge Dedov is merely the latest in a long list of Strasbourg judges and former commissioners who have publicly expressed their antipathy to homosexuality. I think we should thank Judge Dedov for "coming out" on this issue, because he has provided those of us who aim to eliminate discrimination based on sexual orientation, by way of the European Convention on Human Rights, with a useful reminder: not all those in Strasbourg share our aspirations. 

Judge Dedov's homophobic dissenting opinion provides an opportunity to remember some other similar outbursts in Strasbourg. Here's my "top five": 
“While considering the respect due to the private life of a homosexual … we must not forget and must bear in mind that respect is also due to the people holding the opposite view, especially in a country populated by a great majority of such people who are completely against unnatural immoral practices.” Judge Zekia, 1981.  
“A distinction must be drawn between homosexuals who are such because of some kind of innate instinct or pathological constitution judged to be incurable and those whose tendency comes from a lack of normal sexual development or from habit or from experience or from other similar causes but whose tendency is not incurable. So far as the incurable category is concerned, the activities must be regarded as abnormalities or even as handicaps…” Judge Walsh, 1981  
“…adolescent homosexual relationships have a more negative impact on emotional and psychological development than heterosexual relationships. In these circumstances I think that there is an objective and sufficient justification … to set a different age for each type …” Mr Martinez (European Commission of Human Rights), 1997. 
“…if homosexuals had a right to be members of the armed forces their sexual orientation could become known either through them disclosing it or manifesting it in some way … I find that the … discharge [of homosexuals from the armed forces] as being necessary in a democratic society in the interests of national security and the prevention of disorder.” Judge Loucaides, 1999. 
"Homosexuals, like anybody else, have a right to be themselves and should not be the target of discrimination or any other adverse treatment because of their sexual orientation. However, they must, like any other persons with some peculiarity, accept that they may not qualify for certain activities which, by their nature and under certain circumstances, are incompatible with their lifestyle or peculiarity.” Judge Loucaides, 2008.