IN Identoba and Others v Georgia (Application No 73235/12), 12 May 2015, the Fourth Section of the European Court of Human Rights held that Georgia's failure to prevent, and effectively investigate, attacks against an anti-homophobia march violated Articles 3 and 11 of the European Convention on Human Rights (ECHR), read in conjunction with Article 14.
Identoba, a lesbian, gay, bisexual and transgender (LGBT) rights group, sought to organise a peaceful march in the Georgian capital, Tbilisi, to mark the International Day against Homophobia (IDAHO). The group submitted details of the march to the authorities, and was assured that a police force would be deployed to protect against anticipated anti-LGBT demonstrations.
On the day of the march, members of two religious groups organised a counter-protest. They formed a human chain and prevented the march from proceeding along the agreed route. The counter-demonstrators insulted the march participants, calling them “sick” and “faggots”. They shouted that the marchers should be “burnt to death”. The protestors broke the marchers’ banners and punched those who were standing in the front row. A number of participants sustained injuries.
While a small police force did initially accompany the march, they “distanced themselves” when the counter-demonstrators appeared. As the verbal and physical threats escalated, the marchers unsuccessfully sought assistance from on-looking police officers. When additional security personnel did arrive, they arrested a number of the marchers without explanation. The Georgian Government later argued that the arrests protected the participants from the counter-demonstrators.
Identoba, and several participants, filed complaints with the Ministry of the Interior and the Chief Public Prosecutor. They requested investigations into the counter-demonstrators’ violent acts, perpetrated with clear discriminatory intent, and the police's failure to offer protection. The Minister of the Interior responded that, as the police had not acted illegally, there was no cause for investigation. Similarly, while the authorities did open criminal investigations into two applicants’ injuries, neither individual was granted victim status and, two years later, the investigations were still pending. The only punishments imposed on the counter-demonstrators were two €45 fines for minor breaches of public order.
Identoba, and 13 individual applicants, issued proceedings before the European Court of Human Rights, claiming that the violent acts, and the state's failure to intervene or investigate, infringed Articles 3, 10, and 11 of the ECHR, read in conjunction with Article 14 of the ECHR.
In its judgment, the Fourth Section acknowledged that a Contracting State's obligation to prevent, and properly investigate, hate-motivated violence can be reviewed separately under both Article 3 and Article 14. However, as the applicants alleged that it was the specific “homophobic and transphobic overtones” of their mistreatment that engaged Article 3, and that the Georgian State had failed to consider those discriminatory motives, it was “most appropriate” to “subject the applicants’ complaints to a simultaneous dual examination under Article 3 taken in conjunction with Article 14” (at [64]).
The Fourth Section reiterated that, while ill-treatment must attain a minimum level of severity to engage Article 3, it could involve either physical or psychological suffering. In Identoba, it was less relevant to assess the gravity of the applicants’ injuries than to consider the homophobic and transphobic backdrop against which the march took place (at [70]). The Court observed that “[n]egative attitudes against members of the LGBT community [had] become … prevalent in some quarters of Georgian society” (at [68]). The discriminatory overtones of the counter-demonstration were clearly evident, and were only reinforced by anti-LGBT slurs and “acts of scornful destruction … of LGBT flags and posters” (at [69]). The protestors created an emotionally distressing environment, which was exacerbated by the police's failure to provide the agreed protection. The Fourth Chamber concluded that the treatment of the applicants was incompatible “with respect for their human dignity and reached the threshold of severity within the meaning of Article 3 taken in conjunction with Article 14” (at [71]).
The Court held that Article 3 of the ECHR encompasses positive obligations both to protect individuals from ill-treatment, including treatment administered by private individuals, and to investigate effectively allegations of ill-treatment. In particular, Contracting States must take “all reasonable steps to unmask possible discriminatory motives” (at [77]). State authorities, who conflate “violence and brutality with a discriminatory intent” with non-bias-motivated crimes, ignore the “specific nature of [the] acts” and may commit “unjustified treatment irreconcilable with Article 14” (at [67]).
The Court held that the Georgian authorities had failed to satisfy their obligation to protect. State officials received advanced notice of the IDAHO march, including possible counter-demonstrations, and were aware of “the history of public hostility towards the LGBT community in Georgia” (at [72]). They knew, or should have known, that the marchers would be particularly vulnerable and they “were consequently under an obligation to provide heightened State protection” (at [72]). The police, however, omitted to offer adequate supervision. Indeed, when they did finally intervene, the police actually arrested a number of the marchers. The failure to protect was also relevant to claims under Articles 10 and 11 of the ECHR. Disrupting “the applicants’ participation in the peaceful march … [was] an interference under Article 11 … read in the light of … Article 10” (at [97]). Aware of the marchers’ vulnerability, but omitting to adopt proper supervisory measures, the authorities “fell short of their positive obligations under Article 11 taken in conjunction with Article 14” (at [100]).
The Fourth Chamber also identified a failure to make an effective investigation. Despite ample evidence – including video recordings – the authorities had only opened two, narrow investigations and “no significant progress [had] been made” (at [75]). The “only tangible result” was two €45 fines which, considering “the level of the unwarranted violence and aggression against the applicants”, did not “discharge the State of its procedural obligation under Article 3” (at [75]). The Court expressed particular concern that the authorities had failed to investigate apparent bias-motives, as evidenced by the “clearly homophobic hate speech uttered by the assailants during the incident” (at [77]). Exhibiting indifference to discriminatory intent was “tantamount to official acquiescence to or even connivance with hate crimes” (at [77]). It was incompatible with the obligation to make a proper investigation under Article 3, read in conjunction with Article 14.
Identoba enhances the Convention's protections for sexual orientation and gender identity in two important respects. It is the first time that the Court has condemned homophobic and transphobic hate crimes as a violation of Article 3. While, in X. v Turkey (Application No 24626/09), 9 October 2012, the Second Section held that the long-term solitary confinement of a gay prisoner constituted inhuman or degrading treatment, the Court has historically preferred to address anti-LGBT discrimination through Article 8, read in conjunction with Article 14. In Smith and Grady v United Kingdom (Application Nos. 33985/96 and 33986/96) (2000) 29 EHRR 493, the Third Section suggested that “treatment which is grounded upon a predisposed bias on the part of a heterosexual majority against a homosexual minority … could, in principle, fall within the scope of Article 3” (at [121]). However, in that case, the Court ultimately found that the exclusion of gay men from the UK's armed forces breached the right to private life under Article 8. Cases, such as Smith and Gafgen v Germany (Application No. 22978/05 (2011) EHRR 1), illustrate how Article 3 has evolved to protect against mental suffering, as well as physical coercion. While, in Vejdeland v Sweden (Application No. 1813/57 (2014) 58 EHRR 15), the Fifth Section declined to recognise anti-homosexuality leaflets as “hate speech”, the Identoba court expressly brought the protestors’ threats within that definition and found a violation of Article 3.
In addition to conferring an absolute protection, the Court's invocation of Article 3 acknowledges the particularly harmful consequences of bias-motivated crimes for the LGBT community. Building upon earlier case law affirming the right to organise gay pride marches (e.g. Alekesyev v Russia (Application Nos. 4916/07, 25924/08, and 14599/09), 21 October 2010), Identoba suggests that even where LGBT persons are entitled to demonstrate peacefully, state authorities are under a positive obligation to protect against homophobic and transphobic attacks. Moving forward, it will be interesting to see whether the Fourth Section's judgment encourages the application of Article 3 reasoning to other instances of LGBT abuse. Considering the Court's recent condemnation of involuntary sterilisation for Roma women (e.g. V.C. v Slovakia (Application No. 18968/07) (2014) 59 EHRR 29), it is arguable that requiring applicants for legal gender recognition to forfeit their reproductive capacities constitutes “degrading” treatment under Article 3.
Identoba is also notable for its specific acknowledgement of “gender identity” as a protected characteristic under Article 14 of the ECHR (at [96]). Until the Fourth Section's judgment, there had been considerable debate over the extent to which the Convention provided non-discrimination rights for all transgender individuals. In P.V. v Spain (Application No. 35159/09), 30 November 2010, the Third Section had affirmed that “transsexuality is a notion which, without doubt, is covered by Article 14” (at [30]). While moving away from the language of “post-operative transsexuals” used in Goodwin v United Kingdom ((Application No. 28957/95) (2002) 35 EHRR 18), the reference to “transsexuality” suggested a requirement for at least some medical intervention. It would, therefore, have excluded the many transgender persons who reject, or are unable to undergo, a process of medical transition. Adopting the more inclusive terminology of “gender identity”, which focuses on internal and individual experiences of gender rather than physical appearance, the Fourth Section has confirmed that all transgender persons, irrespective of whether they seek medical intervention, have equal enjoyment of Convention rights. In its recent report on transgender equality, the House of Commons Select Committee on Women and Equalities has recommended that “gender identity” replace “gender reassignment” as the appropriate protected characteristic under the Equality Act 2010 (HC 393 (14 January 2016)).
