Following is a re-post of a blog published by the Strasbourg Observers

The Human Rights Centre of Ghent University[1] has recently submitted a third party intervention in the case of Minasyan and Others v. Armenia, which raises important issues concerning the protection of LGBTIQ+ persons against hate speech. In our third party intervention, we invite the Court to clarify Convention standards regarding the positive obligation for the State to combat hate speech based on sexual orientation, gender identity and gender expression. Before summarizing the main arguments developed in our third party intervention, I will first provide a brief overview of the facts of the case.

The facts

The application was filed by LGBTIQ+ activists who had been targeted and harassed by conservative groups because of their activism. In May 2014, at a press conference, the Armenian jury members of the 2014 Eurovision Song Contest stated that they had awarded the lowest points to Conchita Wurst because of their internal revulsion, adding that “just like mentally-ill persons cause aversion, so do such phenomena”. These statements were challenged by a number of participants in the press conference, including the applicants. In response, an article was published on the website of the Iravunk newspaper, entitled “They Serve the Interests of International Gay Lobby: the Black List of Enemies of the Nation and the State.” The article contained a list of hyperlinks to a number of Facebook profiles, including those of the applicants, calling upon the readers to avoid any contact with them and to not employ them. The applicants instituted civil proceedings against the newspaper and its editor-in-chief. During the court proceedings, the newspaper continued to write articles targeting the applicants. The editor-in-chief moreover called on “everyone who was not indifferent towards traditional values and who valued the institution of the family and the nation’s morality” to come to the court to protest in order to defend “the right to live in an environment free from perverse influences”. Ultimately, the applicants’ claim was rejected by the domestic courts, which held that “the article did not aim to insult the applicants but simply contained an element of journalistic exaggeration and provocation.”

In Strasbourg, the applicants complain under Articles 8 (the right to respect for private life) alone and in conjunction with Article 14 (the prohibition of discrimination) about the failure to protect them against discriminatory language and incitement to discrimination against them due to their association with the LGBTIQ+ community and/or their perceived sexual orientation. They hold in particular that the domestic courts had ignored their allegations of discrimination and that the State had failed to put in place a legal and procedural framework protecting against discrimination and/or hate speech based on sexual orientation and gender identity.

Third party intervention

In our third party intervention, we put forward three arguments. Firstly, we recall that the Court has recognized that “discrimination based on sexual orientation is as serious as discrimination based on ‘race, origin or colour’” (e.g. Vejdeland and Others v. Sweden). For this reason, we argue that, as with the latter type of discrimination, homophobia and transphobia is “capable of impacting on the [LGBTIQ+] group’s sense of identity and the feelings of self-worth and self-confidence of members of the group” and therefore raises issues under Article 8 alone and in conjunction with Article 14 (mutatis mutandis Aksu v. Turkey).

Secondly, we argue that, under Article 10 (freedom of expression), the Convention not only allows for hate speech bans (e.g. Vejdeland and Others v. Sweden), but that the case law may even mandate State protection against certain types of hate speech. It is argued in particular that it would be in line with the Court’s prior case law to interpret Article 8 (alone or in conjunction with Article 14) as imposing a positive obligation on the State to put in place a legal framework to protect LGBTIQ+ persons against hate speech. Such legal framework should in particular provide LGBTIQ+ victims of hate speech with access to effective remedies allowing a judicial assessment of how to strike a fair balance between the conflicting fundamental rights under Articles 8 and 10 of the Convention (mutatis mutandis Aksu v. Turkey). The Court is moreover invited to reflect on the question whether the legal framework to protect LGBTIQ+ people against hate speech should consist of criminal-law remedies or whether civil-law remedies are sufficient. In particular, the Court is invited to address the question whether in cases of hate speech “fundamental values and essential aspects of private life” in the sense of the Court’s case law – i.e. mandating criminal law protection – “are at stake” (e.g. X and Y v. the Netherlands). The Court is also invited to identify the relevant factors that ought to be taken into account by domestic authorities when balancing Articles 8 and 10 in cases involving alleged hate speech against LGBTIQ+ people.

Finally, the Court is called upon to offer strong protection against harassment of human rights defenders by private actors. Given the fact that the applicants were specifically targeted on account of their expressions in support of LGBTIQ+ rights, the Court is invited to also consider the Article 10 implications of hate speech targeting persons exercising their freedom of expression. It is argued that robust protection of human rights defenders, including those striving for the protection and promotion of LGBTIQ+ rights, is particularly important as they are the Court’s natural domestic allies in scrutinizing the human rights record of member States. It is moreover argued that in the area of LGBTIQ+ rights, such robust protection is also required as part of a broader positive obligation imposed on the State to strive for the realization of cultural change towards equality on grounds of sexual orientation, gender identity and gender expression.

[1] The third party intervention was written by Eva Brems, Pieter Cannoot, Laurens Lavrysen and Claire Poppelwell-Scevak.