Hate speech and violence against LGBTQI+ individuals are on the rise in Europe. In 2022, ILGA Europe reported an increase in both the number of cases of violence, as well as in their severity. As for hate speech, this was by no means limited to furtive cases; politicians in several countries (including Belgium) reportedly made numerous derogatory or hateful public statements concerning LGBTQI+ persons.
Against the backdrop of these alarming figures, the European Court of Human Rights (‘the Court’) has provided a ray of hope with its admissibility decision in Lenis v. Greece. Indeed, in this case, the Court ruled for the first time that an applicant could not invoke Article 10 of the European Convention on Human Rights (‘ECHR’) to escape conviction for a serious case of hate speech against sexual minorities, because his request amounted to an attempt to abuse the Convention and thus damage the core values that lie behind it. This blogpost discusses the Court’s application of Article 17 in the case and its potential impact.
In Vallianatos and Others v. Greece, dating from late 2013, the Court had held that a Greek law that provided for civil unions as an alternative to marriage but explicitly excluded same-sex couples from its scope violated Article 14, read together with Article 8. In the aftermath of this judgment, the Greek Parliament debated a legislative proposal to extend the scope of civil unions to same-sex couples. The applicant, Amvrosios-Athanasios Lenis, was at the time a Greek Metropolitan who headed two Greek Orthodox Church provinces in Greece. Following a politician’s statement that, in memory of a deceased actor friend, she would help pass the bill, the applicant published an article on his personal blog, titled ‘THE SCUM OF SOCIETY HAVE REARED THEIR HEADS! Let’s be honest SPIT ON THEM!’.
Who the applicant had in mind with the unflattering terms ‘scum of society’ soon became clear in the post itself. Referring to the politician’s statement, the applicant wrote, among other things, that homosexuality is a ‘deviation from the laws of nature’, a ‘sin’ and a ‘mental disorder’. ‘Unfortunately,’ he wrote, ‘Greece is governed by some such petty people’. Admitting that it is ‘their right […] to live secretly […] the way they want’, he nevertheless called on his readers to ‘spit’ on ‘these disgraced people’ whenever they encountered one of them. To conclude, he stated that gay people are ‘not human’, ‘perversions of nature’, ‘people of the dark’, ‘more dangerous than some people living in nuthouses’ and ‘[doomed to] go to hell’.
The blogpost did not go unnoticed and was heavily shared and commented on by several media outlets. A little more than two weeks after publishing the original blogpost, the controversy compelled the applicant to write a second one, in which he attempted to clarify that it had never been his intention to incite violence – something the Greek Orthodox Church condemns – but that he had merely wanted to criticise politicians’ attempts to open up civil unions to same-sex couples and thereby contribute to the legalisation of ‘perverse and thus unnatural relationship[s]’. However, his attempt at damage control accomplished little; the applicant was summoned before the Aigio One-member Misdemeanour Court on suspicion of inciting violence or hatred against people on the grounds of their sexual orientation on the one hand, and abuse of his ecclesiastical office on the other. The court initially acquitted him, following the line of reasoning as set out in the applicant’s second blogpost that the statements exclusively pertained to politicians, but the appellate court later found him guilty of both crimes and sentenced him to seven months’ imprisonment with a three-year suspension and payment of legal costs. In the ruling, the appellate court wrote, among other things, that the article had to be read as a whole: read together with other evidence and witness statements, it became clear that the applicant’s intention had indeed been to incite hatred against gay people and thus dehumanise them. This conclusion was only strengthened by the observation that the applicant himself had admitted in his defence that his first blog post did indeed refer to gay people in general on the one hand, and his attempt to support his defence with documents to prove that homosexuality was a ‘disease’ on the other. The Greek Court of Cassation may have later reversed his conviction for abuse of ecclesiastical office on the grounds that a ‘more lenient’ criminal provision existed for such an offense, but the conviction on the grounds of hate speech remained upheld.
The applicant argued that his right to freedom of expression, as guaranteed by Article 10 ECHR, had been violated by his criminal conviction for the content of his blogpost. The Court recognised that Article 10 did indeed apply to those ideas that could be hurtful or shocking. Nevertheless, they were not to be so offensive or shocking as to destroy the rights and freedoms contained in the Convention itself. Indeed, such an exercise of free speech would violate Article 17. This provision seeks to prevent individuals from deriving rights from the Convention in an attempt to justify their actions, which are incompatible with the core values of the Convention and which would inflict harm onto it. In other words, it excludes certain conduct from the scope of protection afforded by Convention rights and thus prevents individuals from invoking the Convention in defence of such actions (see also Perinçek v. Switzerland, para 113).
An important point of contention, however, was whether the blog post had addressed gay people or had merely pertained to politicians. On this point, the Court followed the findings of the domestic appellate court and based this, inter alia, on the content of the blogpost itself, which reflected a number of statements that were indeed frequently used in relation to gay people (for instance the assertion that they must ‘keep it private’), as well as on the finding that the applicant himself had admitted in his defence submissions that he had initially referred to gay people. In this regard, the Court stated that the applicant’s attempt at retrospective clarification could not change the actual content of the post; the damage had been done regardless of the half-hearted attempt at damage control after the fact.
Thus, the key question was whether such homophobic statements were sufficiently serious to bring Article 17 into play. The Court again followed the domestic courts’ conclusions that the applicant’s statements amounted to hate speech based on sexual orientation. More so, certain statements (e.g. ‘spit on them’, ‘condemn them’, ‘do not let them rear their heads…’) had the potential to contribute to a true climate of fear and lead to violence against and the dehumanisation of gay people (regarding the dehumanisation: ‘they are not human beings!’, ‘they are perversions of nature!’). This conclusion was further reinforced by three other elements: (a) the far-reaching influence of the applicant, who, as a Metropolitan, was the head of two church provinces; (b) the fact that the blogpost was published online and then further circulated, making it so that the message easily could be relayed to thousands of people; and (c) the fact that gay people, a category which the Court considered deserving of special protection on account of the historical oppression and marginalisation which they have faced, were targeted. All this led the Court to conclude that the statements sought to dehumanise gay people. The applicant’s reliance on Article 17 therefore amounted to an attempt to deflect the rights and freedoms enshrined in Article 10 from their real purpose. Accordingly, by virtue of Article 17, the case was declared inadmissible.
Homophobia and Article 17
The final conclusion in this decision is remarkable for a number of reasons. Firstly, the mere fact that the Court finds that Article 17 is applicable, is remarkable in itself. Indeed, Article 17 is by its very nature only applicable in the most extreme and exceptional of cases. In the context of Article 10, this is further reinforced by the Court’s standard case law that the protection granted by Article 10 also extends to those ideas and statements that may be deemed shocking, offensive or hurtful. The threshold for exceeding permissibility under Article 10, and consequently for bringing Article 17 into play, is therefore high. For instance, the Court recently refused to apply Article 17 in a case in which a Bulgarian politician had lost his title of Deputy Speaker in Parliament after condoning and glorifying the crimes committed by the communist regime in Bulgaria.
In addition, the Court traditionally narrows done the scope of Article 17 to a specific number of cases. Generally, the Court applies Article 17 to three categories of aims: (a) propagating, justifying or denying acts of terrorism or war crimes (which also includes Holocaust denial); (b) inciting hatred or violence; and (c) aiming to disturb or overthrow the constitutional order and peace within a Contracting Party. Inciting hatred and violence against gay people put us in the second category. Nevertheless, before this case, the Court had not previously declared Article 17 applicable to a case of hate speech based on sexual orientation alone. Until now, the Court seemed to reserve Article 17 primarily for cases of hate speech based on ethnicity or religion. In previous cases involving hate speech against gay people where Article 17 was considered, either there was a wide range of minorities involved, or the Court did not conduct an inquiry under Article 17 and instead assessed the merits of the case rather than deciding it already at the admissibility stage.
Only in one single case, i.e. Lilliendahl v. Iceland, did the Court conduct an inquiry under Article 17 regarding the conviction of an individual on the basis of hate speech against gay people alone. Ultimately, however, the Court decided to consider the merits of the case in light of the fact that the statements in question ‘did not reach the required degree of seriousness’ to render Article 17 applicable. This was because the Court found that the statements, which included calling homosexuality a ‘sexual deviation’, could not be counted among the worst forms of hate speech, did not incite violence and, due to their limited scope, were unlikely to actually give rise to violence either (see also here). The Court also explicitly contrasted Lilliendahl with Lenis in the present decision, helping to explain why it reached a different decision in Lenis as to the applicability of Article 17.
This contrast with Lilliendahl is important in order to fully grasp the impact of the present decision. By viewing Lenis as a ‘more severe’ version of Lilliendahl rather than a substitution or ‘overruling’ of it, the Court indicates that under this decision, Article 17 should in no way be interpreted as though it would exclude all forms of homophobia from the scope of the protection afforded by the Convention. The Court also explicitly recognised this in the annotated decision; criticism of certain ‘lifestyles’ (sic) on the basis of moral or religious objections should not be considered to be excluded by definition from the scope of Article 10. It is only when the statements extend to such a degree as here that they dehumanise gay persons and call for violence against them that Article 17 comes to the fore. This corresponds with the Court’s case law on hate speech against other minorities as well; not every form will automatically reach the degree of seriousness required to trigger Article 17 (consider for instance the different outcomes in Soulas and Others and Norwood).
Nevertheless, the symbolic value of the Court’s decision in this case is not to be underestimated. Article 17 is applied purely in the context of those acts that violate the core values of the Convention. The Court recognised that discrimination based on sexual orientation in this regard is ‘as serious as discrimination based on race, origin or colour’ – categories in respect of which Article 17 has already been applied on several occasions. In other words, equal respect for each person’s sexual orientation must be considered one of the basic principles of the Convention. In so doing, the Court seems to be harking back to its conclusion in Macatė v. Lithuania earlier this year, in which it also held that animosity toward same-sex relations runs counter to the core principles of equality, pluralism and tolerance and consequently can never legitimately justify interferences with the rights of individuals. Not only does the Convention preclude governments from restricting the rights of individuals out of homophobia, but it simultaneously prevents individuals from invoking the Convention to justify the most extreme excesses of their homophobia as well. This case thus once again entrenches the protection of gay people a little more thoroughly in the Convention acquis. In times of rising levels of hate speech and homophobic violence, this can only be welcomed.
This text is based on a Dutch version of this blog, previously published on EHRC Updates.
This post originally appeared on the Strasbourg Observers blog and is reproduced with permission and thanks