Credit: Wikimedia Commons, Fred Schaerli
On May 12, 2015, in Identoba and Others v. Georgia, the European Court of Human Rights (ECtHR) held that Georgian authorities failed to protect participants in a 2012 peaceful march marking the International Day Against Homophobia from homophobic attacks, even after agreeing to provide police protection. The Court further held that authorities failed to properly investigate the incident and, particularly, the homophobic motivations behind the violence. Finally, the Court held that the State failed to ensure the right to peaceful assembly by not taking positive steps to protect the march participants from bias-motivated violence. On this basis, the State failed to meet its obligations under European Convention on Human Rights (the Convention) Article 3, prohibiting inhuman or degrading treatment; Article 11, affirming freedom of assembly and association; and Article 14, prohibiting discrimination. See ECtHR, Identoba and Others v. Georgia, no. 73235/12, Judgment of 12 May 2015.
Facts and Domestic Procedure
On May 17, 2012, Identoba, a non-governmental organization promoting lesbian, gay, bisexual and transgender (LGBT) rights, organized a peaceful march to honor the International Day Against Homophobia in Tbilisi, Georgia. Prior to the march, Identoba had asked that the authorities provide the individuals involved in the march with protection from possible violence. This request was based on the likely possibility that those opposed to the LGBT community would hold a counter-protest, given hostility within Georgian society directed at sexual minorities. In response, the Ministry of the Interior informed the march organizers that police officers would be sent to the march for this purpose. Id. at 6-9.
During the march, at least one hundred counter-demonstrators aggressively attacked the participants, both verbally and physically. For example, some of the counter-demonstrators called the marchers “sick,” “immoral,” “perverts,” “fagots,” and “sinners” and called for them to be “burnt to death” and “crushed.” Physical violence included grabbing the banners from the marchers, and pushing and punching them. As a result, several of the individuals required medical attention. Id. at 10-19.
With respect to the role of the police, when the marchers approached some police officers in the area to ask them for help, they responded that it was not their duty to get involved. When additional police officers arrived at the scene after the marchers called them, they went on to arrest some of the Identoba employees and demonstrators, without telling them why, and later claimed that they did so partly to protect them. Id. at 14-17.
The State opened two criminal investigations into this incident in 2012. The criminal complaints alleged that the counter-demonstrators’ attacks were discriminatory and also that the police, through both their acts and their failure to act, did not protect the applicants from attack. However, the cases remained pending and the applicants were not given status as victims. Id. at 20-28.
Admissibility
Because the State did not contest either the fact that the demonstration had occurred or that the counter-demonstrators had attacked the marchers, the Court found that issues of fact as well as law raised by the incident required an examination on the merits. Id. at 60-62. Further, the Court found that while the State argued that the applicants did not exhaust domestic remedies because they had not sought civil redress from the Ministry of the Interior, given that the applicants had pursued their claims through criminal law, it was not necessary for them to also make claims through alternative venues. Id. at 85-88.
Merits Decision
Violation of Article 3 in Conjunction with Article 14
The Court concluded that the ill-treatment that the marchers faced reached a level of severity within the meaning of Article 3. This was based on the following: the applicants were surrounded and outnumbered by a mob of individuals, the mob directed death threats as well as physical threats towards them, a homophobic attitude was behind these threats and attacks, the abuse was intended to scare the applicants into abstaining from publicly expressing support for the LGBT community, and the applicants were not provided with the police protection they had been promised. Id. at 68-71.
The Court went on to conclude that the State provided insufficient police protection to the marchers, especially given that officials knew about the demonstration in advance and had been asked by the organizers to provide additional protection. Id. at 72-74. By way of context regarding societal attitudes toward LGBT people in Georgia, the Court referenced a study conducted by the Commissioner for Human Rights of the Council of Europe on Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe. This 2011 study revealed that 84% of respondents in Georgia held negative attitudes toward homosexuality. Id. at 28.
The Court stated that, particularly in light of these hostile attitudes, the authorities had a positive obligation to protect the march participants. They failed to do so, intervening only after participants had been bullied, insulted, and assaulted, and even then, their efforts were concentrated on arresting those they were tasked with protecting, instead of the perpetrators of violence. Id. at 73.
The Court also concluded that the State failed to meaningfully investigate the incident. Even after the march participants requested an investigation, the authorities only opened cases for two demonstrators, and in these cases, only investigated the physical injuries that the individuals had suffered. Further, even for these two cases, over the course of two years, the State made minimal progress and the victims were not given victim status. The sole result of the investigation was the administrative sanctioning of two of the counter-demonstrators who were sanctioned with small fines of 45 euros each. Id. at 75.
Finally, the Court noted that the domestic authorities should have investigated the role that homophobia played in the incidents, given that the discrimination behind the attacks was clear by the explicitly homophobic nature of the attacks. The Court further noted that Georgian law recognizes that a bias motive is an aggravating circumstance in committing criminal offenses and that crimes that are driven by prejudice must be treated differently than “ordinary” cases. Thus, treating them in the same way amounts to the State’s “official acquiescence” with hate crimes. Id. at 29, 76-77.
For these reasons, the Court held that the State violated Convention Article 3 in conjunction with Article 14. Id. at 75-78.
Violation of Article 11 in Conjunction with Article 14
The Court began its analysis of an Article 14 violation by explaining that the State did not dispute the fact that the disruption of the march did constitute a violation of the individuals’ rights under Article 11, which protects the right to freedom of expression, including in the form of peaceful assembly and expressing opinions related to the rights of sexual minorities. Id. at 97.
The Court went on to hold that the State failed to take positive steps in order to ensure that the march could take place peacefully. The Court noted that the State failed to take necessary steps despite having sufficient notice about the march and despite knowing about the risk of disruption or violence, given the homophobic attitudes held by some segments of Georgian society. The Court listed some steps that the State could have taken, such as making public statements ahead of the demonstration calling for tolerance; providing warnings about possible sanctions that would be put into place for those who broke the law; and increasing police presence, including by calling on anti-riot police. The Court noted that the State’s positive obligation to effectively preserve the right to peaceful assembly is especially significant in situations where the assembling group is a minority or holds unpopular views, and thus is more vulnerable. Id. at 91-100.
Other ECtHR Decisions on Violations of Article 3 in Conjunction with Article 14
The Court has found violations of Article 3 in conjunction with Article 14 in other cases involving LGBT individuals. ECtHR Factsheet – Sexual Orientation Issues. For example, in X v. Turkey, the Court upheld a complaint from a gay man regarding his ill-treatment in detention as violating his rights under Article 3 in conjunction with Article 14. See ECtHR, X v. Turkey, no. 24626/09, Judgment of October 2012. X v. Turkey was significant because it represented the first time the Court upheld a sexual orientation complaint under Article 3. [Jurist]
Additional Information
Visit the IJRC’s Online Resource Hub for more information on the European Court of Human Rights and on sexual orientation and gender identity in international and regional human rights frameworks.