By Lourdes Peroni
What role do discriminatory insults play when the Court considers a certain instance of ill treatment in the light of Article 3? The answer seems to depend on which case one looks at. The role is that of “an aggravating factor,” if one looks at the recent judgment in Identoba and Others v. Georgia. However, if one looks at another relatively recent judgment in a case involving similar issues, Karaahmed v. Bulgaria, the answer seems “none.”
Identoba concerned verbal and physical attacks by members of religious groups on members of the LGBT community and LGBT activists marching on 17 May 2012 to mark the International Day Against Homophobia. Karaahmed concerned verbal and physical attacks on Muslim worshippers during Friday prayers by demonstrators of a political party known for its views against Islam.
Comparing the Court’s Article 3 threshold reasoning in Identoba and Karaahmed might leave more than one reader puzzled. Despite the striking similarities between the two cases the Court’s reasoning looks entirely different. What makes the Court’s different approaches even more puzzling is that the cases were decided by the same Section, though with a slightly different composition.
The Identoba and Karaahmed Facts Juxtaposed
The facts in the two cases are obviously not identical. Yet they share many striking similarities. To start with, both Identoba and Karaahmed involved attacks by private individuals, albeit from different groups: religious group members in Identoba and political party members/followers in Karaahmed. They both concerned attacks on minority members, sexual and religious, respectively.
The abuses were similar in nature. In Identoba, the counter-demonstrators insulted LGBT marchers with discriminatory language such as “fagots,” “perverts” and “sinners” (para. 13). In Karaahmed, the demonstrators insulted the Muslim worshippers with discriminatory language such as “Turkish stooges,” “scum,” and “filthy terrorists” (para. 17). In Identoba, the counter-demonstrators destroyed LGBT flags and posters (para. 15). In Karaahmed, several participants burned some of the worshippers’ prayer rugs (para. 25).
In Identoba, the counter-demonstrators threatened the LGBT demonstrators with death and serious harm, saying that they “should be burnt to death” and “crushed”. (para. 15). The threats were followed by actual physical assaults on some of the applicants, including kicking and punching (para. 15). In Karaahmed, one demonstrator can be seen in the video recordings slowly cutting a Turkish fez with a pocket knife, saying “Can you hear me? We shall now show you what will happen to each one of you!” (para. 17). Actual physical assaults also followed: some demonstrators hit the worshippers (para. 20) and pelted them with stones and eggs (paras. 20 and 22).
In Identoba, the counter-demonstrators blocked the marchers’ way and encircled them in a way that the latter could not pass (para. 13). In Karaahmed, several demonstrators entered the mosque compound, some of them carrying wooden flagpoles and metal pipes (para. 20). In both cases (counter-)demonstrators apparently outnumbered the demonstrators/worshippers (around 30 marchers and 100 or more counter-demonstrators in Identoba; 30-40 worshippers outside the mosque and 100-150 demonstrators in Karaahmed). In Karaahmed the applicant suffered no physical injury at the hands of the demonstrators (para. 74). Some of the Identoba applicants did not suffer physical assaults (para. 69).
The Identoba and Karaahmed Article 3 Threshold Reasoning Juxtaposed
Despite the fundamental similarities in the two cases, the Court’s assessment of whether the attacks reached the minimum threshold of severity under Article 3 looks strikingly different. In fact, the first immediate difference is that the Court examines this issue under Article 3 together with Article 14 in Identoba while it does it only under Article 3 in Karaahmed (the applicants in both cases had made complaints under both Articles).
Second, in assessing whether the treatment in Identoba was severe enough, the Court takes into account the counter-demonstrators’ threats. It notes that these threats were followed by actual physical assaults on some of the applicants and that these assaults, in turn, demonstrated the reality of the threats (paras. 69 and 70). In Karaahmed, however, the Court remains silent on the threats launched against the worshippers. Moreover, even though the Karaahmed applicant suffered no physical injury himself, the demonstrators physically assaulted several of his fellow worshippers, also showing that the threats were real. Third, whereas in Identoba the Court takes into account that the angry mob outnumbered the marchers (para. 70), in Karaahmed it overlooks the seeming outnumbering factor.
A fourth difference is that in Identoba the Court looks at the aim of the counter-demonstrators’ abuse and concludes that the aim “was evidently to frighten the applicants so that they would desist from their public expression of support for the LGBT community” (para. 70). In Karaahmed, the Court accepts that the intentions of the demonstrators were “to mock publicly and debase the worshippers and their religion” (para. 75). Yet it concludes that the actions were not so severe as to cause the kind of feelings required by Article 3 given their short duration:
… As the Government have submitted, this was a one-off demonstration which lasted an hour and a half. This was not, therefore, a case where the prolonged actions of demonstrators could be said to have resulted in considerable mental suffering to the applicant.
Like in Identoba, the Court could have considered whether the aim of the demonstration was to frighten the applicants so that they would desist from the public manifestation of their religion. Instead, the Court later on suggests that, unlike previous case law concerning religiously-motivated violence, the acts in Karaahmed were not designed to force the applicant to act against his will and conscience (para. 75).
The most notable difference, though, is that the Court recognizes that a clearly distinguishable homophobic bias played the role of an aggravating factor in Identoba (para. 70) but remains silent about any religious bias in Karaahmed. In fact, in Identoba, the Court re-affirms the principle that “discriminatory remarks and insults must … be considered as an aggravating factor when considering … ill-treatment in the light of Article 3” (para. 65). In Karaahmed, however, the principle is missing despite its relevance. So is an assessment of whether the discriminatory insults and acts against the Muslim worshippers were an aggravating factor when examining the Article 3 threshold.
By now, readers have probably figured out the outcome in both cases: the Court found a violation of Article 3 taken together with Article 14 in Identoba but found the applicant’s complaints under Article 3, alone or together with Article 14, inadmissible in Karaahmed.
Differences Explaining Different Reasoning?
The question now is whether any significant differences between the two cases might explain the Court’s different approaches. Might Identoba have just been better argued at Strasbourg? The two judgments indicate that allegations of discriminatory overtones were on the Strasbourg table when it came to the Article 3 threshold (para. 59 in Identoba and para. 69 in Karaahmed). Now, the extent to which the applicants pushed for this line of argument at Strasbourg is obviously hard to know without contrasting their actual submissions in the two cases.
One clearer distinguishing element, which may partly account for the differences in the Court’s reasoning, is the context of negative attitudes against certain groups as documented in international reports. The Court’s point of departure in the Articles 3 & 14 analysis in Identoba is quite telling:
Bearing in mind the various reports on the rights of lesbian, gay, bisexual and transgender (LGBT) people in Georgia … the Court acknowledges that the community finds itself in a precarious position. Negative attitudes against members of the LGBT community have become more or less prevalent in some quarters of Georgian society. It is when assessed against that background that the discriminatory overtones of the incident of 17 May 2012 and the level of vulnerability of the applicants, who publicly positioned themselves with the target group of the sexual prejudice, are particularly apparent (emphasis added).
In Karaahmed, no reference is made to broader contexts of intolerance and negative attitudes against Muslims in Bulgaria, perhaps because no one brought it to Strasbourg. The Court however sends a signal about the role of context when distinguishing Karaahmed from previous cases involving religiously-motivated violence:
… The events at the mosque … fall to be distinguished from the findings of a violation of Article 3 found by the Court in Members of the Gldani Congregation of Jehovah’s Witnesses and Others … and Begheluri … where severe beatings, forced searches and a series of other humiliating acts … took place in a general and national climate of religious intolerance at the material time, were found to meet the Article 3 threshold (emphasis added).
To conclude, it remains hard to tell whether context alone made the difference between Identoba and Karaahmed in the Article 3 threshold reasoning. What is clear – and welcome – is that Identoba comes to confirm that contexts of hostile attitudes/behavior against certain groups documented in reports may be playing an increasing role in assessing allegations of discriminatory abuses (see also para. 37 in Abdu and post by Mathias Möschel on this Blog; para. 107 in Begheluri and Others v. Georgia).
 See separate opinion of Judge Wojtyczek in Identoba, para. 4. Unlike Judge Wojtyczek, however, I think that both Identoba and Karaahmed offered enough elements to meet the Article 3 threshold.
 Another distingushing element was that protection had been promised by the police to the Identoba marchers but ultimately not given in due time or adequately. The Court thought that this must have exacerbated the applicants’ feelings of emotional distress (para. 70). This element seems however less consequential in the Court’s reasoning.
 This does not mean that such reports do not exist. A quick search brings up the report by Thomas Hammarberg, following his visit to Bulgaria in November 2009. The report draws attention precisely to the kind of abuses involved in Karaahmed and to “a growing Islamophobia” in Bulgaria, paras. 25, 26 & 126. Admittedly, the visit took place around a year and a half before the date of the events in Karaahmed.