Failure to conduct an investigation into homophobic hate crime in Moldova violates the ECHR
The Second Section of the European Court of Human Rights has issued its judgment in Genderdoc-M and M.D. v the Republic of Moldova.
Genderdoc-M is an association that represents the interests of LGBT people in the Republic of Moldova (see a previous judgment of the Court concerning Genderdoc-M: Genderdoc-M v Moldova, 2012).
M.D. is an individual born in 1998 and living in Bălți.
The case relates to two separate issues:
1) An alleged criminal offence committed by M.
In 2014 a District Court found that, in a public statement, M. had "engaged in hate speech and incitement to discrimination against homosexuals by calling on the public to prevent them from being employed in educational, medical and public food institutions and by falsely claiming that 92% of homosexuals were infected with HIV".
The District Court ordered M. to retract the above-mentioned statements and to pay damages and costs to Genderdoc-M.
M. gave a press conference in which he said that he would "apologise not to homosexuals, but to Christians, whom he had misinformed when he had claimed that 92% of homosexuals were infected with HIV. In fact, he declared, 95% of them were thus infected, adding that many of them were a danger to society".
Genderdoc-M lodged a criminal complaint against M.
The Prosecutor’s Office refused to start a criminal investigation, finding that M.’s actions did not constitute a criminal offence.
Genderdoc-M appealed against that decision, and the appeal was rejected. All subsequent appeals were also rejected.
2) Ill-treatment suffered by M.D.
In 2014, M.D. was physically and verbally abused in the street by a group of 12-14 minors, who called him gay.
A video showing the abuse was posted on the internet. A criminal investigation was initiated into those events.
Subsequently, A.P. approached M.D in the street and insulted him for being gay, saying that he knew him from the video on the internet.
A.P. again approached M.D. three days later and this time beat up M.D.
M.D. reported this attack to the police, stating that A.P. had “without any reason, hit him in the head seven times and kicked his body three times”, after which he had left. In a further statement to the police, M.D. added that A.P. had, on the first encounter, called him a “faggot” and a “paedophile”.
The Prosecutor’s Office refused to start a criminal investigation, stating that A.P.’s actions did not amount to a criminal offence. The prosecutor found that A.P. had beaten up M.D. not because of his sexual orientation and, moreover, had not said anything on this occasion about his sexual orientation.
Appeals against the decision of the prosecutor were unsuccessful. A key reason given by the domestic courts was that M.D. had not raised the issue of discrimination at the time of the complaint.
Admissibility of the complaint by Genderdoc-M.
Relying on Articles 10 and 14 of the Convention, Genderdoc-M complained of the lack of protection from the State authorities against the hate speech uttered by M. against members of the LGBT community, the interests of which they represented.
The Court stated that, as an association, Genderdoc-M. could not claim, under Article 34 of the Convention (individual applications), to be a victim of the acts or omissions which affected the rights and freedoms of its individual members who can lodge complaints with the Court in their own name.
On this basis, the Court declared inadmissible the complaint by Genderdoc-M.
Judgment on the complaint by M.D.
M.D. complained under Articles 3, 8 and 14 about the authorities’ failure to investigate effectively and punish the violence against him which had been motivated by homophobia.
The Court focused on Article 3 taken in conjunction with Article 14, and did not consider Articles 8 and 14 separately.
The Court stated that, given the unprovoked assault including ten blows to various parts of his body, M.D. had suffered treatment that was degrading, even in the absence of any homophobic overtones, the existence of which the authorities were required to investigate, and Article 3 was applicable.
In respect of M.D.'s complaint that the attack had not been appropriately investigated and relevant hate crime law not appropriately applied, the Court noted that in his initial complaint to the authorities M.D. "did not specifically mention discrimination or allege that the ill-treatment was the result of A.P.’s homophobic attitude" and that this was "one of the main reasons for which the courts confirmed the prosecutors’ decisions not to initiate a criminal investigation against A.P.".
However, the Court stated that when he made his complaint, M.D. was "clearly still recovering from the assault, notably from concussion" and it "would be excessively formalistic for the authorities to base their entire investigation into a serious complaint about ill-treatment only on the first complaint". Moreover, M.D. had informed the authorities from the outset that he had been approached by A.P. three days earlier who had insulted him using swear words and, in a subsequent statement, M.D. had specified what kind of words those had been, namely “faggot” and “paedophile”. In addition, A.P. had identified M.D. from a video on the internet which clearly identified him as gay.
The Court stated that all of these facts "should have made it obvious to the authorities that [M.D.] was in fact complaining not only of the violence itself, but also of its underlying homophobic reasons" and it was "difficult to understand the domestic courts’ reasoning to the effect that [M.D.] never complained of discrimination or alleged that the violence perpetrated against him had been motivated by hatred towards him" on the basis of his sexual orientation.
The Court concluded that the authorities "never seriously examined the possibility that [M.D.'s] ill-treatment had been a hate crime" and their "failure even to initiate a formal criminal investigation into the [...] allegations undermined from the start their ability to establish this crucial point".
Because of this, the Court stated that the authorities fell short of their procedural obligation to investigate the attack on M.D., "with particular emphasis on unmasking any discriminatory motive for the violence".
The Court stated that the "absence of such a meaningful investigation undermines public confidence in the State’s anti-discrimination policy".
The Court held that there had, therefore, been a breach of the State’s positive obligation under Article 3 taken in conjunction with Article 14 of the Convention.
In respect of the admissibility decision relating to the complaint by Genderdoc-M, the Court made clear that, as an association, it could not complain in its own name of the breach of the rights of its members and beneficiaries. As such, to pass the admissibility test, a complaint needed to be brought by an individual or individuals claiming to be the victim or victims of a violation.
In respect of the judgment relating to the complaint by M.D., the Court reiterated that the interplay between Article 3 and Article 14 provides LGBT+ people with strong protection against ill-treatment.
The Court's established position is that the authorities’ duty to prevent hate‑motivated violence on the part of private individuals, as well as to investigate the existence of a possible link between a discriminatory motive and an act of violence, can fall under the procedural aspect of Article 3. Moreover, this may also be seen to form part of the authorities’ positive responsibilities under Article 14 to secure the fundamental values enshrined in Article 3 without discrimination.
In Identoba and Others v Georgia (2015) the Court established that when authorities fell short of their procedural obligation to investigate homophobic crime this meant that there had been a breach of the State’s positive obligations under Article 3 taken in conjunction with Article 14 of the Convention. In the case of M.D., the Court reiterated this position. Because the authorities fell short of their procedural obligation to investigate the attack on M.D. - an investigation that should have emphasised unmasking any discriminatory motive for the violence - there had been a breach of the positive obligations under Article 3 taken in conjunction with Article 14.
An important feature of this case is that M.D. did not explicitly tell the police, at the first point that he reported the attack, that he believed the attack was motivated by homophobia. However, with the information that M.D. gave to the police in his initial and subsequent statements, the Court felt that it should have been "obvious" to the authorities that he was complaining about a homophobic motivated attack. As such, the Court's judgment sends a clear message that States are under a positive obligation to appropriately investigate the "obvious" factors that may indicate that a homophobic hate crime has been committed. As my colleague, Dr. Silvia Falcetta, commented to me, this arguably raises the threshold that national authorities must meet in order to demonstrate that they have fulfilled their obligations under Article 3 and Article 14 and, as a consequence, strengthens the protection against hate-motivated violence.
For a history of sexual orientation discrimination cases under Article 3 of the Convention, see: "Sexual Orientation Discrimination and Article 3 of the European Convention on Human Rights: Developing the Protection of Sexual Minorities".