14 Nov State’s obligation to protect LGBT members from homophobic acts of violence and to investigate those crimes

The case of Romanov and Others v. Russia (application no. 58358/14, 12.9.2023) relates to the claimed failure of the State to provide protection for eleven applicants belonging to the lesbian, gay, bisexual, transgender, and intersex (LGBTI) community, from acts of violence motivated by homophobia, a lack of effective investigations into these incidents, and unlawful detention by the police. 

The European Court of Human Rights unanimously found a violation of following articles of the European Convention on Human Rights: Article 3 (prohibition of inhuman or degrading treatment) read in the light of Article 14 (prohibition of discrimination) in respect of seven of the applicants; a violation of Article 3 (effective investigation) read in the light of Article 14 in respect of eight of the applicants; and a violation of Article 11 (freedom of assembly and association) taken alone and read in the light of Article 14 in respect of eight of the applicants. It also found, in respect of three of the applicants a violation of Article 5 § 1 (right to liberty and security); and a violation of Article 11. 

The case related to incidents in which applicants participating in authorised pro-LGBTI protests were subjected to verbal and physical assault by counter-demonstrators, or were targeted for attending events that aimed to support LGBT individuals or simply for being present in public spaces. Some of them had suffered physical injuries. The applicants have made claims that those were hate-motivated attacks. Furthermore, three applicants have made claims asserting that they were detained unlawfully by the police, before the start of the authorised pro-LGBTI demonstration in which they were about to take part.

The police, who were supposed to maintain security during the protests, did not intervene immediately in the attacks. The pre-investigation inquiries and the investigations, if opened, lasted for years. In some cases, attackers were not identified, or could not be sentenced due to the expiration of the limitation period.  Although the applicants requested motives of hate being investigated, the authorities rejected those allegations. 

The Equal Rights Trust, ILGA-Europe, the Russian LGBT Network, and Human Rights Watch provided third-party comments, stating that the concept of “hatred against a particular social group” as an aggravating factor in offences, that could cover crimes against LGBTI persons, had never been previously applied to cases involving this certain group. 

Given that the claimed violations of the Convention took place before 16 September 2022, the date on which the Russian Federation terminated its membership in the Convention, the Court therefore decides that it has jurisdiction to examine the applications. 

The Court found that Russian authorities should have foreseen the security risks at those pro-LGBT gatherings, and had time to put safety measures in place to protect the participants given the hostile attitudes of parts of Russian society towards the LGBTI community. Moreover, serious threats had circulated on social media prior to demonstrations, which were brought to the attention of the police, so they were under an obligation to use any means to neutralise the threats or de-escalate the tension. 

Having in mind that investigations were delayed or not fully conducted, the Court did not consider them to be “effective” within the meaning of Article 3 of the Convention. Besides, possible hate motives behind the attacks had not been taken into account since investigating authorities had repeatedly rejected the applicants’ allegations that the attacks were homophobic. As the court stated, “When investigating violent incidents such as ill-treatment, State authorities also have a duty to take all reasonable steps to unmask possible discriminatory motives for a violent act. They must examine all the facts that may be indicative of violence fuelled by hatred towards the victim, including possible homophobic motives.” (para. 76).

Accordingly, the Court held that there had been a violation of Article 3 of the Convention read in the light of Article 14 in both its substantive and procedural limb. 

The Court also found a breach of the applicants’ right to liberty under Article 5 and violation of the State’s negative obligations under Article 11 (obligations breached by preventing applicants’ participation in the event through unlawful arrest) taken alone. Regarding the situation of one applicant the Court noted that “even though the domestic courts in the civil proceedings found that Mr Prokopenko’s deprivation of liberty had been unlawful the amount of EUR 27 awarded to him in respect of non-pecuniary damage cannot be considered appropriate and sufficient redress for the alleged breach of the Convention” (para 86). 

Since the national authorities had failed to duly secure the demonstrations by not deterring homophobic insults and physical violence by counter-demonstrators, the Court concluded that the State had failed to comply with their positive obligations under Article 11 (to secure the effective enjoyment of freedom of assembly) of the Convention taken alone and read in the light of Article 14.