Last Updated on October 8, 2020 by LawEuro
Information Note on the Court’s case-law 244
October 2020
Aghdgomelashvili and Japaridze v. Georgia – 7224/11
Judgment 8.10.2020 [Section V]
Article 14
Discrimination
Abusive police conduct during search of premises of an LGBT NGO motivated by homophobic and/or transphobic hatred: violation
Article 3
Degrading treatment
Abusive police conduct during search of premises of an LGBT NGO motivated by homophobic and/or transphobic hatred: violation
Facts – At the time in question, both applicants worked at a lesbian, gay, bisexual and transgender (LGBT) non-governmental organisation (NGO) – the Inclusive Foundation (IF). In December 2009, police officers in civilian clothing entered the IF office and, and in the presence of the applicants and others, conducted a search of the premises. Upon discovering the nature of the NGO, the officers became aggressive and displayed homophobic behaviour.
Law – Article 14 in conjunction of Article 3: In the light of the police officers’ conduct, the Court had no hesitation in establishing that: (i) the impugned acts of the police officers had reached the requisite threshold of severity to fall within the ambit of treatment proscribed by Article 3 taken in conjunction with Article 14; and (ii) homophobic and/or transphobic hatred had been a causal factor in the impugned conduct of the police officers.
The police officers had wilfully humiliated and debased the applicants, as well as their colleagues, by resorting to hate speech, by uttering insults such as “sick people”, “perverts” and “dykes” for everybody present in the office to hear. In addition, the behaviour of certain police officers had also contained elements of threat. The officers had grossly mistreated the people gathered in the IF office, including the two applicants, who all belonged to the LGBT community, and which found itself in a precarious situation in the country at the material time (see Identoba and Others v. Georgia, 73235/13, 12 May 2015, Information Note 185), by promising to divulge their actual and/or perceived sexual orientation to the public and by saying that they were on the brink of resorting to physical violence against them. The threat to use physical force had been followed by one of the police officers saying that he wished he could burn the place down, as well as by the forcible seizure of the first applicant’s mobile telephone by another officer.
In particular, the applicants and some of their colleagues had been subjected to strip-searches in the toilet of the IF office. No record or any other document on those intrusive investigative techniques had ever been drawn up; the police had not given the applicants any reasons for those strip-searches, and the respondent Government had not referred to any reasons in their submissions. Taking those factors into account, the Court found that those searches had not had any investigative value whatsoever, and their sole purpose had been to make the applicants and the other women feel embarrassed and humiliated and thus punish them for their association with the LGBT community; the homophobic comments made by the female police officers in the course of the strip-searches could be taken as additional proof of the purpose of the acts.
In sum, the wholly inappropriate conduct of the police officers during the search of the IF office had been motivated by homophobic and/or transphobic hatred and must necessarily have aroused in the applicants feelings of fear, anguish and insecurity which were not compatible with respect for their human dignity.
Conclusion: violation (unanimously).
The Court also found, unanimously, a violation of Article 3 under its procedural limb read in conjunction with Article 14, in that the respondent State’s investigation into the applicants’ allegations of ill-treatment with discriminatory intent had been ineffective.
Article 41: EUR 2,000 to each applicant in respect of non-pecuniary damage.
(See also M.C. and A.C. v. Romania, 12060/12, 12 April 2016, Information Note 195, and the Factsheet on Sexual Orientation Issues)
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