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Identoba v Georgia (ECtHR): obligations to protect from, investigate and punish homophobic hate speech

Identoba & Ors. v Georgia: positive obligations to protect from, effectively investigate and punish homophobic hate speech

On 12 May, the ECtHR handed down a ground-breaking judgment in the case of Identoba v Georgia. The case is the first time the Court addresses the positive obligations of states to protect from, and respond to, homophobic hate speech by non-state actors.

The judgment elaborates on the positive obligations of states to protect people from homo and transphobic aggression, to investigate homophobic motives underlying criminal activity, and to ensure accountability. The Court found violations of positive obligations under Articles 3 (freedom from torture, cruel inhuman and degrading treatment (TCIDT)), 11 (assembly) and 14 (discrimination). The judgment is also significant in finding that public taunts and threats, coupled with 'sporadic physical abuse', met the high threshold of torture, cruel inhuman or degrading treatment under Article 3 of the Convention. In finding violations of the right to peaceful assembly under Article 11, the judgment held that both the rights of demonstrators and of the organising NGO (Identoba) had been breached.

The case arose from a lawful demonstration on 17 May 2012 by supporters of a Georgian LGBT rights organisation (Identoba) to mark International Day against Homophobia. The state authorised the march and agreed to provide security. On the day however counter-demonstrators impeded the passage of the march, subjecting demonstrators to homophobic insults, threats and sporadic physical assaults.

Given the nature of hate speech and its impact, the Court found that the high threshold for a violation under Article 3 had been met. The judgement states that the 'violence, which consisted mostly of hate speech and serious threats, but also some sporadic physical abuse in illustration of the reality of the threats, rendered the fear, anxiety and insecurity experienced by all thirteen applicants severe enough to reach the relevant threshold under Article 3 [TCIDT] read in conjunction with Article 14 [discrimination] of the Convention.'

The judgment is also significant in clarifying the extent and nature of states' positive obligations of protection in this context. It states that 'having regard to the reports of negative attitudes towards sexual minorities in some parts of the society, as well as the fact that the organiser of the march specifically warned the police about the likelihood of abuse, the law-enforcement authorities were under a compelling positive obligation to protect the demonstrators, including the applicants, which they failed to do.' The Court highlighted the sort of measures the states could have taken to protect, such as ensuring adequate police presence, including if necessary the backing of riot police, and public awareness raising initiatives. The judgment indicates that the Georgian authorities 'were under an obligation to use any means possible, for instance by making public statements in advance of the demonstration to advocate, without any ambiguity, a tolerant, conciliatory stance as well as to warn potential law-breakers of the nature of possible sanctions.'

The Court makes clear, for the first time, that investigating possible homophobic motives underlying criminal acts is 'indispensible.' The Court noted that 'treating violence and brutality with a discriminatory intent on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights.' Such failure may itself constitute discrimination under Article 14 of the Convention. The Court went so far as to state that 'prejudice-motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence to or even connivance with hate crimes.' (para. 77)

The Court also referred to the importance of accountability and appropriate penalties, finding that the administrative sanctioning of two counter-demonstrators was insufficient. Nor could the mere fact that two criminal investigations had been launched discharge the respondent state's procedural obligations where those investigations had been pending since 2012 without meaningful progress. Discrimination against the LGBT community is widespread in Georgia.

The judgment provides recognition of the nature and gravity of these violations, and affirms important standards for states as they seek to give real effect to the right to equality of LGBT people across Europe.

HRP was adviser to Georgian counsel (Levan Asatiani and Nino Bolkvadze) on behalf of Identoba in the finalisation of the case before the ECtHR. This followed on earlier involvement through Interights with the presentation of the case to the Court.

The submission is available 
here, and the judgment here.