Last Updated on May 17, 2022 by LawEuro
Information Note on the Court’s case-law 262
May 2022
Oganezova v. Armenia – 71367/12 and 72961/12
Judgment 17.5.2022 [Section IV]
Article 3
Effective investigation
Positive obligations
Failure to protect LGBT bar owner and activist from homophobic arson, physical and verbal attacks and to carry out effective investigation: violation
Article 14
Discrimination
Failure to protect LGBT bar owner and activist from homophobic arson, physical and verbal attacks and to carry out effective investigation: violation
Facts – The applicant is a well-known member of the lesbian, gay, bisexual and transgender (LGBT) community in Armenia and has been involved in promoting the rights of LGBT persons both in her country and internationally. The applicant co-owned and managed a bar in the centre of Yerevan, a place where members of the LGBT community would meet to socialise. Following the broadcast of her interview in which she had mentioned her participation in a gay pride march, she became the subject of an online hate campaign, intimidation and threats on the basis of her sexual orientation. This culminated in an arson attack on the bar in May 2012 which caused significant damage. After this attack and that same month, the bar in general and the applicant personally became the target of continued aggression almost every day and lasting more than two weeks, by a number of individuals. The applicant was subjected to death threats, physical mobbing and hate speech, including online. In June 2012 she left Armenia for Sweden where she applied for asylum on the basis of persecution due to her sexual orientation. Two of the perpetrators of the arson attack were convicted of intentionally causing damage to property and received a suspended prison sentence which the applicant unsuccessfully appealed against.
Law – 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.
(See also Identoba and Others v. Georgia, 73235/12, 12 May 2015, Legal Summary; M.C. and A.C. v. Romania, 12060/12, 12 April 2016, Legal Summary; Beizaras and Levickas v. Lithuania, 41288/15, 14 January 2020, Legal Summary; Aghdgomelashvili and Japaridze v. Georgia, 7224/11, 8 October 2020, Legal Summary; Association ACCEPT and Others v. Romania, 19237/16, 1 June 2021, Legal Summary; Women’s Initiatives Supporting Group and Others v. Georgia , 73204/13 et 74959/13, 16 December 2021)
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