Hanovs v. Latvia: Further clarification of the positive obligations of States in cases involving homophobic attacks

By Alina Tryfonidou

The rise of homophobic and transphobic crime is a deeply troubling and pervasive issue in modern day Europe (see the FRA LGBTIQ Survey (2024), pp. 54-76). A key factor behind this is the growing wave of right-wing populism, which has contributed to an increasingly hostile social and political climate, where divisive rhetoric often targets minority groups, including sexual and gender minorities. In this climate, therefore, it is more critical than ever for States to thoroughly investigate and punish hate crimes, sending a clear message of zero tolerance of such actions to their perpetrators and others inclined to commit such acts, while restoring the faith of minority groups in the State’s commitment to protecting them from violence and discrimination (see, inter alia, the Committee of Ministers of the Council of Europe Recommendation on combatting hate crime).

Over the past decade, a significant number of applications involving homophobic attacks – predominantly from Eastern European States – have been brought before the European Court of Human Rights (the Court), highlighting the widespread nature of the issue. Most concerningly, these cases reveal a troubling pattern: many Eastern European countries consistently fail to protect LGBTI+ persons from violence and, when such attacks occur, they fail to carry out effective investigations and/or to impose appropriate punishments. The judgment in Hanovs v. Latvia (2024), is the most recent ruling of the Court in this saga and further clarifies states’ positive obligation to effectively investigate and punish homophobic attacks. 

Facts

Deniss Hanovs, the applicant, and his same-sex partner, were walking their dog along the Kengarags market in Riga, when they encountered two visibly intoxicated men. The men started calling the applicant and his partner names, hit the applicant on the back, made remarks of a sexual nature, and tried to assault him. In response, the applicant threatened to call the police, prompting further aggression and an attempt, by one of the men, to punch him, but the applicant escaped by entering a nearby flower shop. Following unsuccessful attempts to enter the shop and a further altercation, the men eventually departed and the police arrived after being called by the applicant’s partner. The State Police initiated criminal proceedings on the charge of ‘hooliganism’ under Section 231(1) of the Latvian Criminal Law. When interviewed as a suspect, one of the men, JP, admitted to being offended by the couple’s public display of affection, which led him to assume their sexual orientation. The investigator concluded that the elements of a criminal offence were not made out and the police considered the matter an administrative offence. JP was found guilty of ‘petty hooliganism’ and fined 70 euros. The applicant appealed, arguing that JP’s actions constituted a hate crime under Section 150 of the Latvian Criminal Law, as JP had admitted his actions were motivated by his dislike for gay people. However, the appeal was dismissed on the grounds that JP’s actions were directed solely at the applicant and did not incite hatred towards sexual minorities. Further appeals were referred to higher-ranking prosecutors, but after another police investigation, it was concluded that JP’s actions did not meet the criteria for a hate crime, as they lacked the intent to incite hatred or sufficient publicity to affect public attitudes towards a social group. In his application lodged before the Court, Hanovs claimed that the Latvian authorities had failed to conduct an effective investigation into, and to impose an appropriate punishment for, the homophobic attack committed against him.

Judgment

The Court began by noting that the applicant’s complaints should be subjected to a simultaneous examination under Articles 3 and 8 ECHR, read in conjunction with Article 14 ECHR. Regarding Article 3 ECHR read together with Article 14 ECHR, the Court noted that discriminatory treatment may amount to degrading treatment under Article 3 ECHR when it reaches a certain level of severity such as to constitute an affront to human dignity, and discriminatory remarks must be considered as an aggravating factor when considering a given instance of ill-treatment in the light of Article 3. More specifically, attacks on LGBTI+ individuals, triggered by expressions of affection, are seen as affronts to human dignity by targeting universal expressions of love and companionship, as the concept of dignity encompasses the right to express one’s identity and affection without fear of retribution or violence. Regarding Article 8 ECHR read together with Article 14 ECHR, the Court highlighted that attacks on LGBTI+ individuals due to public displays of affection profoundly affect their private lives and limit their freedom to enjoy the right to respect for private life as freely as different-sex couples.

The Court then proceeded to examine whether the facts involved a violation of the above provisions. It found that the domestic authorities were presented with clear evidence of violence motivated by the applicant’s sexual orientation. This, in the Court’s view, required a rigorous application of domestic criminal law mechanisms capable of taking into account the homophobic overtones behind the attack and of prosecuting and adequately punishing those responsible. The perpetrator was, however, neither charged nor prosecuted for the hate-motivated attack. Instead, the Latvian government pursued administrative-offence proceedings which failed to address the hate element of the attack and the sanction imposed consisted of a fine at the lowest limit of the applicable scale. The Court deemed this approach incompatible with the State’s obligations under the ECHR, as it ‘trivialised the incident’ and treated ‘a hate-motivated attack as equivalent to minor disturbances of public order’, ‘fostering a sense of impunity for hate-motivated offences rather than affirming a clear and uncompromising stance against such acts’. It explained that ‘such incidents can normalise hostility towards LGBTI individuals, perpetuate a culture of intolerance and discrimination and encourage further acts of a similar nature’. The Court, therefore, unanimously held that Latvia had failed to fulfil its obligations under Articles 3 and 8 ECHR, read in conjunction with Article 14 ECHR. 

Analysis

Hanovs v. Latvia is not the first case in which the Court addressed issues related to hate crimes and a State’s alleged failure to effectively investigate and punish such offences. The first ever case on this matter was Nachova v. Bulgaria (2005), where the Court ruled that contracting States have an obligation to effectively investigate hate crimes – on the facts, a racially-motivated killing involving State police – and to examine potential racist motives behind acts of violence. Two years later, in Šečić v. Croatia (2007), the Court broadened this procedural obligation, to encompass cases involving hate crimes perpetrated by private individuals. As noted by another commentator, this development paved ‘the way for further crystallisation of the Court’s jurisprudence on the positive duties which govern official response to racially motivated violent crime’.

The first case to reach the Court that addressed the States’ positive obligations in cases of homophobic attacks was Identoba v. Georgia (2015). The case involved a peaceful march organised by an NGO in Tbilisi to mark IDAHOBIT, which was violently disrupted by counter-demonstrators who far outnumbered the marchers. The applicants, participants in the march, argued that the Georgian authorities had failed to protect them from the violent attacks of the counter-demonstrators and to effectively investigate the incident by taking into account the discriminatory motive behind the violence. The Court found a violation of Article 3 in conjunction with Article 14 ECHR. First, it was evident that the State authorities had not fulfilled their substantive obligation to protect the applicants adequately: surrounded by an angry mob making serious threats and resorting to random acts of physical violence, the applicants must have experienced fear, anguish and insecurity, which was not compatible with respect for their human dignity. Moreover, given the widespread negative attitudes against members of the LGBTI+ community in parts of the Georgian society, the discriminatory nature of the attacks was unmistakable. Thus, according to the Court, the authorities, who knew or ought to have known of the risks surrounding the demonstration, had been under an obligation to provide sufficient protection, but had failed to do so. The Court also concluded that the Georgian authorities had failed to consider the homophobic and transphobic motives behind the attacks as aggravating circumstances as part of the investigation, despite Georgian law providing for this. As a result, they did not comply with their procedural obligation to conduct a proper investigation into the applicants’ claims of ill-treatment.

The procedural obligations requiring States to properly investigate homophobic attacks by private individuals were subsequently confirmed by the Court in its rulings in M.C. and C.A. v. Romania (2016), Sabalić v. Croatia(2021), Women’s Initiatives Supporting Group and others v. Georgia (2022) – which was essentially a sequel to Identoba v. Georgia (2015) – Genderdoc-M and M.D. v. Moldova (2022), Beus v. Croatia (2023) and Karter v. Ukraine (2024).  Also recently, in Romanov v. Russia (2023), the Court not only found a violation of Article 3 in conjunction with Article 14 ECHR, due to the State’s failure to protect LGBTI+ demonstrators from – and to investigate properly – violent attacks by private individuals, but it also found a violation of Article 5 ECHR, as the applicants had been unlawfully arrested and detained by the police during peaceful pro-LGBTI+ demonstrations, and of Article 11 ECHR read alone and in conjunction with Article 14 ECHR, as their arrest meant that they could not participate in the demonstrations. In Aghdgomelashvili and Japaridze v. Georgia(2021) and Lapunov v. Russia (2023), the Court extended both the procedural obligation to effectively investigate and punish hate-motivated attacks, and the substantive obligation to protect sexual and gender minorities from such attacks, to situations where the perpetrators were state police officers. 

In Hanovs v. Latvia, the Court reaffirmed its established case-law on the positive obligations of States in cases of homophobic violence. However, for the first time, it also held that attacks against individuals based on their public displays of affection (as opposed to their public expression of support for the LGBTI+ community) could constitute a violation of human dignity. It emphasised that such attacks undermine not only the physical safety of the victims but also their emotional and psychological well-being, ‘turning a moment of intimacy into one of fear and trauma’. What is more, they ‘humiliate and debase the victims, conveying a message of inferiority of their identities and expressions’. Moreover, for the first time in a case involving a homophobic attack, the Court also found that there was a violation of the right to respect for private life under Article 8 ECHR  – read in conjunction with Article 14 ECHR – as attacks against LGBTI+ individuals due to their public displays of affection inhibit the victims’ ability to express fundamental human emotions openly and force them towards invisibility and marginalisation, while they compel them to conceal essential aspects of their private lives to avoid harm. This, according to the Court, limits their freedom to enjoy the right to respect for private life as freely as different-sex couples. 

Accordingly, Hanovs v. Latvia is another piece in the jigsaw of Court’s rulings which require States not only to protect LGB persons from violent attacks but also to investigate and punish such incidents effectively. As states’ obligations to effectively investigate homophobic hate crimes are now clearly established in the Court’s case-law, it is time for proper implementation. As is well documented (see, for instance, the UN fact sheet on homophobic and transphobic violence), sexual and gender minorities are particularly vulnerable to violence and discrimination and, thus, compliance with the positive obligations imposed on States as a result of this line of case-law is crucial for several reasons. 

First, Hanovs v. Latvia and the other cases that preceded it demonstrate that it does not suffice for States to have in place a legal framework which criminalises violent acts with a homophobic and transphobic motive: to comply with their obligations under the ECHR, they need to ensure that this legal framework is consistently and thoroughly implemented. This is because proper investigations of crimes are crucial for ensuring that the human rights of the victims are fully respected and protected. Moreover, by addressing – in particular – the homophobic and transphobic motives behind violent attacks, States affirm the principles of non-discrimination and equality before the law, which are core values of the ECHR. 

Secondly, State indifference towards hate crimes perpetrated against the members of sexual and gender minorities is tantamount to official acquiescence to or even connivance with and encouragement of such crimes. Such indifference emboldens those who perpetrate homophobic and transphobic attacks: without a serious risk of prosecution, offenders may feel free to engage in further acts of violence or even retaliate against victims for having reported them, knowing they are unlikely to face consequences. Accordingly, effectively investigating, prosecuting and punishing such crimes, whilst treating homophobic or transphobic motives as aggravating factors, is essential for sending a strong message that violence against sexual and gender minorities is under no circumstances acceptable and that State authorities are taking seriously reports made by the victims of such incidents. When homophobic and transphobic motives are acknowledged and addressed in legal proceedings, it not only holds perpetrators fully accountable but also deters others from committing similar acts by indicating that hate crimes carry serious legal consequences. Even more importantly, addressing the discriminatory motives behind violent attacks helps to ensure that the justice system works not only to punish the crime but also to confront the underlying hate that fuels such violence. 

Finally, the failure of States to effectively investigate and punish homophobic and transphobic crimes may reinforce the belief among LGBTI+ persons that reporting of such incidents is pointless as it will yield no results. In other words, it can erode the trust of persons belonging to sexual and gender minorities in the legal system, making such groups feel abandoned by the State. As a result of this, victims may not come forward to report such incidents of violence, creating a false impression that homophobic and transphobic violence is rare or declining. Such a perception fosters complacency and diminishes the urgency with which States address these issues. Effectively investigating, prosecuting and punishing homophobic and transphobic crimes is, therefore, essential not only to rebuild the trust of persons belonging to sexual and gender minorities in the legal system but also to enable States to proactively address these incidents by identifying and recognising the problem and working in different ways to tackle its root causes. 

Conclusion

The rise in homophobic and transphobic violence across Europe demonstrates the urgent need for States to take decisive action in investigating and punishing hate-motivated attacks. This issue is starkly illustrated in Hanovs v. Latvia, where the Court found Latvia in violation of its positive obligations under the ECHR, for its failure to effectively prosecute and punish the homophobic attack on Deniss Hanovs. Despite evidence of homophobic motives behind the attack, the Latvian authorities pursued only a minor administrative offense, trivialising the incident and undermining the State’s obligations to protect sexual and gender minorities from violence.

The judgment clarifies the Court’s established jurisprudence that demands not only an effective legal framework but also consistent and thorough implementation to ensure effective investigation and prosecution of hate crimes. A State’s indifference to such violence sends a troubling signal of tolerance, deterring victims from reporting incidents and allowing a culture of prejudice and impunity to persist. Failing to recognise discriminatory motives in these cases erodes trust in the legal system among sexual and gender minorities, further marginalising these vulnerable groups. Accordingly, together with training of law enforcement and judicial personnel on the specific challenges faced by sexual and gender minorities, and public education campaigns to counteract homophobic and transphobic biases, robust investigation and prosecution efforts are vital steps in building societies free from discrimination against LGBTI+ persons.