Failure to respond adequately to homophobic motivated physical threats and verbal assault

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Gender Law Newsletter FRI 2025#1, 01.03.2025 - Newsletter abonnieren

EUROPE: HUMAN RIGHTS

Judgment of the European Court of Human Rights of 3 December 2024, Yevstifeyev and Others v. Russia (Application nos. 226/18 and three others)

The European Court of Human Rights (hereinafter ‘the Court’) has found that russian authorities have violated Art. 14 of the European Convention on Human Rights (ECHR) taken in conjunction with Art. 8 ECHR because they have not responded adequately to homophobic verbal assault and physical threats against three of the applicants.

Two cases have been examined by the Court in its judgement. However, only the first case has been declared admissible by the Court. It concerns three applicants who had been insulted and threated in Russia by a member of the St Petersburg Legislative Assembly (M.) while they were part of a LGBT column at a rally and carrying rainboy flags and LGBTI thematic banners. This person had shouted, inter alia, that the participants should all be “liquidated”. The registration of the criminal complaint of the applicants against M. had been refused by the russian authorities because, according to them, M. had only expressed his opinion about the LGBTI community. They administrative complaint against M. had also been rejected because M. did not name the applicants. The civil claim of the applicants had been rejected because, inter alia, according to the civil court, the applicants had only heard what M. had shouted in a video after the rally and because Mr M. did not know the applicants personally.

In its judgement, the Court finds that “the statements at issue affected the applicants’ psychological well-being and dignity and therefore fell within the sphere of their private life”, so that Art. 8 ECHR as well as Art. 14 ECHR in conjunction with Art. 8 ECHR were applicable (§ 64). The Court states that the parties to the ECHR have a positive obligation under Art. 8 and 14 of the ECHR to respond to cases of harrassement through verbal assault or physical threats motivated by homophobia and that “this positive obligation is of particular importance for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimisation” (§ 67). If the rights protected by Art. 8 of the ECHR have been breached by the exercice of the freedom of expression protected by Art. 10 of the ECHR, a fair balance has to be struck between “the right of the applicants to respect for their private life”  and “the public interest in protecting the freedom of expression” (§ 68).

In the present case, the Court finds that the russian authorities, by refusing to register the criminal complaint on the grounds of the freedom of expression of M. without further investigation, have “failed to recognise that the case involved a conflict between the applicants’ rights to respect for their private life and to protection from discrimination on the ground of sexual orientation and M.'s right to freedom of expression” (§ 71). They have therefore failed to struck a fair balance between the rights protected by Art. 8 and Art. 10 of the ECHR (§ 72). The Court also finds that the administrative complaint has been rejected without sufficient reasons. In particular, the applicants had been adressed by the statements of M. because they were participating at the rally (§ 73). The Court also finds that the lack of acquaintance of M. with the applicants was not relevant to reject the claim and that the applicants had been affected by the statements of M. at least by watching the video of the rally (§ 74). The court also qualifies the statements of M. as “openly homophobic and particularly aggressive and hostile in tone” and that he “also made physical threats against them” (§ 75). The Court therefore states that the russian authorities “failed to comply with their positive obligation to respond adequately to the verbal assault and physical threats motivated by homophobia directed against the applicants” (§ 76) and, therefore, that they have violated Art. 14 of the ECHR in conjunction with Art. 8 of the ECHR (§ 77). The Court points out that “[f]ailure to address such incidents can normalise hostility towards LGBTI individuals, perpetuate a culture of intolerance and discrimination and encourage further acts of a similar nature” (§ 76).

Direct to the judgement (https://hudoc.echr.coe.int)