ECtHR, 5th Section, Apps. Nos. 73204/13 and 74959/13, 16 December 2021

Judge O’Leary (President), Judges Yudkivska, Ilievski, Chanturia, Jelić, Bårdsen, Guyomar

The ECtHR ruled that the respondent State’s failure to protect the applicants’ public rally from homophobic and/or transphobic acts of violence by counter-demonstrators and to conduct an effective investigation into the incident breached Article 14 ECHR read with Articles 3 and 11. The individual applicants were Georgian nationals and the applicant associations were Georgian NGOs set up to promote and protect the rights of LGBT people in Georgia. They complained that the Ministry of the Interior had taken inadequate steps to protect participants in various peaceful demonstrations despite having been notified of various threats from identifiable individuals. 2 000 police officers had been deployed but had failed to protect protestors from intimidation and, in some cases, physical assault. Georgia had also failed in its duty to investigate the events. The Court was satisfied that the failures to protect and to investigate had reached the threshold required for Article 3. It awarded the damages sought by the applicants which ranged from 2 500 to 10 000 Euro although it rejected their applications for costs on the basis that they were not evidenced.

The applicants, peaceful protestors, had been besieged by large numbers of aggressive counter-demonstrators who had chanted homophobic insults and physical threats, shaken wooden sticks and iron batons, surrounded and blocked buses containing LGBT demonstrators, rocked the vehicles and used stones and iron batons to break their windscreens in an attempt to pull the demonstrators out while chanting incitements to kill them. Police officers had, although present, initially been reluctant to help the demonstrators. All the applicants suffered severe stress while one also had concussion after being hit in the head by a stone and several police officers received physical injuries. One of the counter demonstrators was subject to a subsequent physical attack from counter demonstrators who punched and kicked him before he fled, police officers who were called to assist him in his hiding place advising that they could not ensure his safety unless he shaved off his beard and disguised himself as a police man (which he did) and subjecting him to homophobic remarks.

Various investigations resulted in the exoneration of the police, the imposition of administrative sanctions on four counter-demonstrators who were fined 45 euros each and criminal proceedings against four other counter-demonstrators all of whom were acquitted at trial after a court ruled that the investigation had failed to secure any evidence that would reliably prove the link between the violence and the actions of the accused. The court identified a number of shortcomings in the investigation including the failure of the investigators properly to examine video footage which would have allowed the proper identification of at least some of the perpetrators of the violent attacks.

The applicants relied on Articles 3 and 14 ECHR which the Court considered together. Having found that the situation that the applicants had found themselves in was “not compatible with respect for their human dignity and reached the threshold of severity within the meaning of Article 3 taken in conjunction Article 14” (§61) it went on to refer at §66 to “the domestic authorities’ long-standing inability – which can also be read as unwillingness – to examine the homophobic and/or transphobic motives behind the violence and degrading treatment committed against the relevant twenty-seven individual applicants. The domestic criminal legislation expressly provided that discrimination on the grounds of sexual orientation and gender identity should be treated as a bias motivation and an aggravating circumstance in the commission of an offence … There was a pressing need to conduct a meaningful inquiry into the possibility that discrimination had been the motivating factor, given the well-documented hostility against the LGBT community in the country at the material time”. The failure to conduct a proper investigation amounted, the Court ruled at §67, to “a violation of Article 3 under its procedural limb read together with Article 14 of the Convention” (§61). As to the substantive claim, the court ruled that the authorities ought to have anticipated the violent counter-demonstration and to provide adequate protection to the protestors, which they did not. There was also evidence that some police officers connived or acquiesced with the counter-demonstrators by opening up the cordon intended to separate the groups, and/or by remaining passive when the counter‑demonstrators started to break the cordon.

At §78 the Court concluded that “having regard to the respondent authorities’ failure to effectively take operational preventive measures aimed at protecting the applicants’ rally  from the violent counter‑demonstration, the indications of official acquiescence, connivance and even active participation in individual acts motivated by prejudice, the Court concludes that there has been a violation of Article 3 under its substantive limb read together with Article 14 of the Convention”. Interesting, the Court reached this conclusion without having undertaken any structured consideration of scope, differential treatment, analogous circumstances or justification. The Court also found a breach of the positive obligations imposed on the state by Articles 11 and 14 (§84). It awarded the damages sought by the applicants which ranged from 2 500 to 10 000 Euro although it rejected their applications for costs on the basis that they were not evidenced.