Arson attack to an LGBT community member business and verbal attacks by homophobes. Failure of the authorities to protect a gay woman. Humiliating treatment and prohibited discrimination
JUDGMENT
Oganezova v. Armenia 17.05.2022 (ap. no. 71367/12 and 72961/12)
SUMMARY
Protection of sexual orientation from discrimination. Criminal treatment of homophobes.
The applicant Armenian national, a well-known member of the lesbian, gay, bisexual and transgender (LGBT) community in Armenia, was forced to flee to Sweden and seek asylum for fear of persecution in her home country because she was repeatedly attacked by a group of people. They initially set fire to her business, a bar and made cyber threats of death and abuse. The domestic authorities took action a week after the events and after 5 days they were all protection despite the constant manifestations of hatred against her. She brought an action for degrading treatment and prohibited discrimination. She also asked the ECtHR to instruct the defendant state to take measures to combat crimes committed by homophobes.
The Court reiterated that treatment based on a predisposed bias by a heterosexual majority against a homosexual minority may, in principle, fall within the scope of Article 3. It also stressed the positive obligation of the State party to take measures to protect victims or potential victims of abuse. In such cases, Article 3 requires the authorities to conduct an effective investigation into the alleged ill-treatment, even if such treatment has been caused by individuals.
In the present case, the ECtHR found that the applicant had been the target of a persistent and aggressive homophobic campaign that was premeditated, motivated by homophobic bias and aimed at preventing the applicant from reopening the bar.
It further found that the applicant’s discomfort was further exacerbated by the fact that the police had not responded properly and in a timely manner. Finally, the arson attack was treated by the investigating authorities and then by the courts, as a common arson crime. The domestic authorities had ignored the essential aspect of the crime.
The ECtHR held that the authorities had not fulfilled their positive obligation to investigate effectively whether the arson attack instigated by the applicant’s sexual orientation constituted a homophobic offense. Consequently, the authorities failed to adequately respond to the homophobic hate rhetoric of which the applicant was a direct target because of her sexual orientation.
The ECtHR found a violation of Article 3 in conjunction with Article 14, and awarded EUR 12,000 in respect of non-pecuniary damage.
PROVISIONS
Article 3
Article 8
Article 14
Article 46
THE DECISION OF THE COURT…
Article 3 read in conjunction with Article 14:
(a) Threshold of severity – The fact that the applicant had not suffered actual physical injury at the hands of the perpetrators of the arson attack or any other individual engaged in the subsequent events was not decisive. She had become the target of a sustained and aggressive homophobic campaign which had eventually led to her to permanently leave the country where she had lived her entire life and had her family and social ties. In assessing the incidents in question, the Court bore in mind the precarious situation the LGBT community found itself in the respondent State, as it transpired by the various reports on the overall sentiment towards that community. Against that background, the discriminatory nature of the events and the level of vulnerability of the applicant, who had publicly positioned herself with the target group of sexual prejudice, were particularly apparent. The aim of the attacks had evidently been to frighten the applicant so that she would desist from her public expression of support for the LGBT community, including her community-oriented activism by running the bar as a communal project. They had also resulted in the applicant being deprived of her livelihood as a result of the loss of her source of income from her destroyed business. It was clear that the behaviour of the perpetrators of the arson attack as well as the persons involved in the applicant’s subsequent harassment had been premeditated, motivated by homophobic bias and aimed at deterring the applicant from reopening the bar. Further, at one point the applicant had to physically confront unknown men who had directly threatened and seriously humiliated her.
The applicant’s emotional distress must have been further exacerbated by the fact that the police had failed to react properly and in a timely manner; they had only put in place protection measures in respect of her and her closest relations more than a week after she had requested protection for the first time and those measures had been discontinued only five days later without there being any indication that the applicant and her close relations were no longer at risk of ill-treatment. The situation that the applicant had thus found herself in as a result of all the attacks on her person motivated by homophobic hatred must necessarily have aroused in her feelings of fear, anguish and insecurity which had not been compatible with respect for her human dignity and, therefore, reached the threshold of severity within the meaning of Article 3 taken in conjunction with Article 14.
(b) As regards the alleged ineffective investigation into the arson attack – Albeit carrying out a prompt and reasonably expeditious investigation into the arson attack, the police had not taken any investigative measures at the scene. It had been the efforts of the employees of a nearby business and of the applicant and her associates that had led to two of the perpetrators being identified and later apprehended, resulting in the authorities having no difficulty in resolving the case. Although the hate motive had been overt from the very outset and despite unequivocal and direct evidence that setting the bar on fire had been motivated by the applicant’s sexual orientation and the bias towards the LGBT community in general, the arson attack had been addressed by the investigative authorities and subsequently the courts as an ordinary crime of arson, effectively ignoring the hate-based nature of the offence in terms of legal consequences. This fundamental aspect of the crime had effectively been rendered invisible and of no criminal significance.
The existence of the evidence in this case mandated for an effective application of domestic criminal-law mechanisms capable of elucidating the hate motive with homophobic overtones behind the violent incident and of identifying and, if appropriate, adequately punishing those responsible. No such mechanisms, however, existed in domestic criminal law which did not provide that discrimination on the grounds of sexual orientation and gender identity should be treated as a bias motive and an aggravating circumstance in the commission of an offence. Furthermore, Article 226 of the Criminal Code, which criminalised incitement to hatred, did not refer to sexual orientation and gender identity. The relevant recommendation by the European Commission against Racism and Intolerance in this respect had not been followed.
Given the clear hate motive behind the arson attack on the bar and the precariousness of the situation of the LGBT community in the respondent State, it had been essential for the relevant domestic authorities to adequately address the issue of discrimination motivating the arson attack on the bar. Without such a rigorous approach on the part of the law‑enforcement authorities, prejudice-motivated crimes would inevitably be treated on an equal footing with cases involving no such overtones, and the resultant indifference could be tantamount to official acquiescence in, or even connivance with, hate crimes. Moreover, a failure to make a distinction in the way situations that were essentially different are handled might constitute unjustified treatment irreconcilable with Article 14.
The authorities had thus failed to discharge their positive obligation to investigate in an effective manner whether the arson attack which had been motivated by the applicant’s sexual orientation constituted a criminal offence committed with a homophobic motive. Notwithstanding, there was no basis to find that it had been a discriminatory state of mind that had been at the core of this failure.
(c) As regards the authorities’ reaction and the follow-up given to the applicant’s complaints concerning the post-arson attacks and hate speech –
(i) Post-arson attacks – No investigative measures had been taken whereas the protection measures had been put in place belatedly and had been discontinued after five days for reasons that remained unclear. Considering that the police had decided to put in place such measures because they had assessed that there existed “a real danger threatening the applicant’s life, health and property”, the decision to lift them had necessitated a careful reassessment of the persistence of the very same risks. Furthermore, there was no indication of any follow-up to the applicant’s complaints and none of the violent incidents had been mentioned in the indictment nor the subsequent judicial decisions. In any event the law-enforcement authorities would not have had any legal possibility to properly address the incidents by, in particular, subjecting their homophobic motivation to a proper evaluation under domestic law, in line with the requirements of the Convention. The authorities had thus failed to provide adequate protection to the applicant from the bias-motivated attacks by private individuals following the arson attack and to conduct a proper investigation of the applicant’s allegations of abuse motivated by homophobia.
(ii) Hate speech – There was no indication that there had been any meaningful follow-up to the applicant’s complaints despite the evidence she had submitted to the police. As in the case of Beizaras and Levickas v. Lithuania, the hateful comments in the present case had contained undisguised calls for violence against the applicant which had required protection by criminal law. No such possibility, however, existed under domestic criminal law. In addition, having regard to the actual acts of violence, which had preceded the online verbal abuse, the authorities should have had taken the hateful comments posted on social-media platforms more seriously. Instead, parliamentarians and high-ranking politicians themselves had made intolerant statements by publicly endorsing the actions of the perpetrators of the arson attack. Although domestic law had since evolved prohibiting hate speech, sexual orientation and gender identity were still not included in the characteristics of victims of the offence of hate speech despite the recommendations of the relevant international bodies in that respect. Consequently, the authorities had also failed to respond adequately to the homophobic hate speech of which the applicant had been a direct target because of her sexual orientation.
Conclusion: violation (unanimously)
Article 41: EUR 12,000 in respect of non-pecuniary damage.
