MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-4

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-4 Oganezova v. Armenia (Application No. 71367/12) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1208, CM/Del/Dec(2023)1468/H46-1

 

Application	Case	Judgment of	Final on	Indicator for the classification
71367/12	OGANEZOVA	17/05/2022	17/08/2022	Complex problem

·  Cooperation project: EU-JP 3438 - “Promoting equality and non-discrimination: towards more resilient and inclusive societies” ·  Cooperation project: EU-JP 3443 – “Promoting equality and non-discrimination in Armenia”

Case description

This case concerns an aggressive homophobic campaign against the applicant, a well-known member of the lesbian, gay, bisexual and transgender (LGBT) community in Armenia, including an arson attack in May 2012 on the bar she co-owned and ran in Yerevan. The Court found that the authorities had failed to offer adequate protection to the applicant from homophobic attacks and hate speech. They also failed to conduct a proper investigation into the hate-motivated ill‑treatment against her, including into the arson attack on the club and the subsequent homophobic attacks. The Court further noted the lack of comprehensive legislation on discrimination in general, including the lack of a legal definition of discrimination and absence of adequate criminal-law mechanism for investigating discrimination complaints (violation of Article 3 taken in conjunction with Article 14).

Status of execution

Action plans were submitted in February 2023 (DH-DD(2023)232) and March 2023 (DH-DD(2023)411). The Committee of Ministers examined this case at its 1468^th meeting (DH) in June 2023. The authorities provided an updated action plan on 3 October 2024 (DH-DD(2024)1208), summarised as follows:

Individual measures:

Following the Court’s judgment, the applicant did not apply for the reopening of the criminal proceedings within the period prescribed by law. However, in February 2022 the case was reopened on the basis of the applicant’s representative’s report, based on newly discovered circumstances. In its last decisions, the Committee of Ministers invited the authorities to submit information about the relevant developments in these reopened criminal proceedings. According to the last information provided, the investigation continues.

The just satisfaction has been paid to the applicant.

General measures:

In their initial action plans, the authorities presented some legislative developments, in particular the adoption of a new Criminal Code and a new Code of Criminal Procedure, which entered into force in 2022. Among other reforms, the scope of “aggravating circumstances” was expanded to include the motive of hatred, intolerance or animosity caused inter alia by “other circumstances of a personal or social nature”, which covers bias related to sexual orientation or gender identity (SOGI). Discrimination is criminalised, as well as public speech aimed at inciting or promoting among others hatred, discrimination and intolerance. The status and rights of victims are also reinforced. The authorities also provided information on the preparation (with the involvement of international experts) of a new draft Law on Equality, and about training and awareness raising initiatives (including their expressed readiness to implement the Council of Europe Manual “Policing Hate Crime against LGBTI persons: Training for a Professional Police Response”, and their plan to elaborate guidelines on the investigation of discrimination and hate speech). More details on these measures are presented in the Notes for the 1468^th meeting, 5-7 June 2023 (DH).[1]

In their decisions of June 2023, the Committee called on the authorities to promptly complete the drafting of the Law on Equality in line with relevant international standards and the Court’s findings in this case, and to adopt it without further delay. It welcomed the new elements introduced in the criminal legislation which allow an adequate criminal law response to homophobic hate crimes and invited them to provide information on their practical application, as well as to submit relevant statistical data. It welcomed further the readiness of the authorities to implement at the domestic level the Council of Europe manual on policing hate crimes and their plan to elaborate guidelines on the investigation of discrimination and hate speech and encouraged them to take full advantage of cooperation possibilities with the Council of Europe in this field. Finally, the Committee encouraged the authorities to continue taking determined action to raise awareness about discrimination and prejudice experienced by LGBTI persons, and conducting training for law enforcement and criminal justice practitioners on issues related to effective investigation of hate crimes and needs of victims.

The latest information provided is the following:

1. Legislative developments

Following consultations with the relevant stakeholders, civil society and the public, the draft Law on Equality was submitted to the National Assembly for adoption. This law will provide a list of protected grounds, and define the concept of discrimination and its types, legal mechanisms for the restoration of rights or compensation, as well as the composition and mandate of the Ombudsperson as an equality body.

The authorities are considering amending the Code of Administrative Offences to include hate speech.

2.     Criminal-law response: statistical data  

Between July 2022 and July 2024, there were two criminal prosecutions in Armenia concerning discrimination on the ground of religious beliefs based on Article 203 of the Criminal Code. In three other cases, criminal proceedings were initiated with reference to the aggravating circumstances provided by Article 71 (1) § 6 of the Criminal Code, i.e. “committing the crime with the motive of hatred, intolerance or animosity caused by racial, national, ethnic or social origin, religion, political or other views or other circumstances of a personal or social nature”. In one of these cases, sexual orientation or gender identity was taken as a circumstance “of a personal nature”. In one case, criminal proceedings were initiated into psychological pressure and physical assault motivated by hatred, intolerance, or hostility based on racial, national, ethnic, or social origin, religion, political or other beliefs, or other personal or social circumstances (Article 194 (1) and Article 195 (2) § 10 of the Criminal Code).

3.     Training and awareness raising

In the framework of the Council of Europe co-operation Project "Promoting equality and non-discrimination in Armenia", several initiatives were carried out to enhance the expertise of the Armenian police officers and other public servants regarding international standards on non-discrimination and equality, and introducing them with viable mechanisms to address hate motivated crimes, including on SOGI grounds:

Ø  In the period from 5 April to 30 May 2024, 12 representatives from the Ministry of Justice, the Human Rights Defender’s Office and law enforcement agencies successfully completed an online course on combating hate speech, hosted by the Council of Europe’s HELP platform.

Ø  On 19-21 June 2024, five Armenian police officers participated in a peer-to-peer exchange in Skopje, North Macedonia. This training brought together law enforcement officers and NGO representatives from four countries aiming to improve their skills in identifying and addressing hate-motivated crimes and learn best practices from other countries.

Ø  In June and September 2024, two training courses on European standards on equality and non-discrimination were conducted for police officers.

Ø  In addition, the Manual on “Policing Hate Crimes against LGBTI persons: Training for a Professional Police Response”[2] and the Manual for Police Education on Equality and Non-discrimination[3] were translated into Armenian, with the final publication expected by the end of 2024. The authorities intend to include these materials in the curriculum of Educational Complex of the Ministry of Internal Affairs.[4]

The authorities, in cooperation with international partners, are currently developing awareness raising materials for the general public, which should be released by the end of 2024.

Communication under Rule 9:

On 21 October 2024 a joint communication was submitted by the Pink Armenia NGO, the European Human Rights Advocacy Centre and the ILGA Europe related to the individual and general measures in the present group of cases (DH-DD(2024)1244).

As concerns individual measures, they submitted that the investigation is lacking promptness, and that the applicant could not get information on its progress in the last two years. In response to her last request of 3 October 2024, the authorities replied that several investigative actions have been conducted and that the investigation is ongoing.

As concerns general measures, the NGOs submitted that the draft Law on Equality has several loopholes, including:

i)              failure to explicitly list sexual orientation and gender identity as protected grounds;

ii)             lack of legal standing for civil society organisations to bring claims of public interest; and

iii)            limited mandate of the Equality Body.

They also submitted that the new Criminal Code of 2022 does not provide effective protection to the LGBTI persons and that in practice, many bias-motivated crimes against the LGBTI persons are not qualified as committed with the aggravating circumstance of hatred or intolerance. Further, they pinpointed the authorities’ failure to effectively prevent and combat hate speech, insufficient capacity building for law-enforcement on anti-discrimination and hate crimes, insufficient awareness raising for general public and preventing Pink Armenia NGO from launching its public campaigns.

Therefore, the NGOs called in particular for the adoption of a comprehensive Law on Equality explicitly providing sexual orientation and gender identity as protected grounds; amending Articles 71 and 330 of the Criminal Code to include the same protected grounds; develop and implement the system of recording hate crimes and identifying the bias motive; make statistics available to the public; provide further training to law enforcements and prosecutors; and raise awareness of general public and specific groups on hate crimes, hate speech and discrimination.

In reply to this communication (DH-DD(2024)1244), on 29 October 2024 the government explained, as concerns individual measures, that the investigation was reopened based on newly discovered circumstances following a report by the applicant’s representative about a post on social media alleging rather a state security motive than a homophobic motive in the events in question. Complex investigative measures are being conducted; however, no details can be discovered at this stage considering the confidentiality of the investigation.    

As concerns general measures, the government replied that effective investigation is ensured in all hate crimes incidents duly reported to the law-enforcement authorities. In the period from January to July 2024, 10 persons were charged in over 33 hate speech and hate crimes cases. Out of them, five persons were convicted, and two persons acquitted. The Prosecutor General’s Office considers further measures to improve accurate reporting of such crimes. The authorities disputed the NGOs submission about the insufficiency of training for law-enforcement and reported that large scale capacity building measures on anti-discrimination, hate crime and hate speech are carried out for police officers, investigators, prosecutors and judges, including through the Council of Europe HELP online platform. Further, the authorities provided information on awareness raising activities for the general public, politicians, journalists and educators carried out in cooperation with NGOs and the Council of Europe, and on their intention to develop a Guide for the Television and Radio Commission on the application of the relevant provisions on hate speech and a Code of Conduct for the Members of the National Assembly sanctioning hate speech. Finally, the authorities reiterated their submissions on important legislative measures adopted to ensure proper criminal-law response against discrimination, hate crimes and hate speech and to enhance victim’s rights. The draft Law on Equality was subjected to the expert review by the Council of Europe[5] and the Organisation for Security and Cooperation in Europe (OSCE) and main recommendations have been taken into account.   

Analysis of the Secretariat

Individual measures:

Almost three years have passed since the reopening of the criminal case. The Committee might thus wish to urge the authorities to take all the required measures to ensure that the new investigation is conducted effectively, taking due consideration of the Court’s findings in the present judgment. They should finalise it promptly to avoid loss of evidence, prescription and ultimate impunity of perpetrators.

General measures:

Draft Law on Equality

It is positive that the authorities have made a considerable progress in their work on the draft Law on Equality. Adoption of this law is an important pre-requisite for an effective protection against discrimination and a necessary general measure to respond to the Court’s findings in this case.

The draft proposed for public consultations does not explicitly list sexual orientation, gender identity or sex characteristics as specific protected grounds.[6] Presumably, these grounds can be covered by “other personal or social circumstances” listed in Article 3 § 1 p. 3 of the draft law. However, the European Commission against Racism and Intolerance (ECRI) expressed concern in this regard in its 2023 Report on Armenia, underlining the need to explicitly establish these grounds in the draft legislation as protected grounds.[7] The Committee might thus wish to encourage the authorities to give a higher priority to the LGBTI equality in line with ECRI’s recommendations, by including these specific protected grounds in the draft legislation on equality, thus also reflecting provisions of Article 14 and Article 1 of Protocol No. 12 and the well-established case-law of the Court, and keep it informed of the progress in the adoption of this law. 

Criminal-law response

The official statistical data submitted by the authorities differ from the data provided by the NGOs.[8] It emerges from the 2023 ECRI Report on Armenia that the scarce official data available on hate speech incidents of a criminal nature and hate crime do not reflect the actual amplitude of the problem.[9]

This can also be observed from the OSCE/ODIHR 2022 Hate Crime Report on Armenia, according to which out of 50 incidents recorded by the civil society in 2022, 23 were committed against LGBTI persons. [10] The ECRI Report on Armenia and the NGOs communication also draw attention to the problem of under-reporting of hate crimes against LGBTI persons.[11] According to the data provided by the NGOs, out of 51 cases documented in 2023, only 12 victims sought assistance from law-enforcement.

Adding to the difficulty of monitoring the scale of the problem, the statistical data collected by the authorities is not disaggregated by bias motivation, despite ECRI’s long-standing recommendations to introduce a proper data collection mechanism.[12] In November 2019, the Council of Europe commissioned a study on data collection on hate crime and hate speech in Armenia and addressed recommendations to the authorities.[13] The Committee might wish to encourage the authorities to consider these recommendations and invite them to establish a system of disaggregated data collection on hate crime, including crimes committed on the SOGI grounds. Such data would enable both the authorities and the Committee to assess the effectiveness of the measures taken and the need for additional action. The authorities should also be invited to provide updated statistics and examples of domestic case-law on crimes against the LGBTI people, including as concern sanctioning, to show how the Criminal Code provisions on hate crimes and hate speech are being implemented.

The measures adopted to enhance the capacity of the police to respond effectively to hate crimes, including the adaptation of the relevant Council of Europe manuals and their translation into Armenian, can be welcomed, as well as the authorities’ intention to include these manuals in the regular curricula for police training. They should be encouraged to continue their efforts with a view to increasing the capacity of criminal justice system to combat the LGBTI-phobic hate crime, hate speech and discrimination effectively. This can include developing methodological recommendations on legal qualification of hate crimes on SOGI grounds in the light of the new criminal-law provisions; improving reporting on hate crime and hate speech; further targeted training for all criminal justice actors; taking measures to ensure victim support to increase trust in law-enforcement and fight under-reporting etc. Inspiration on the possible measures can be drawn from the Recommendation CM/Rec(2024)4 of the Committee of Ministers on combating hate crime.

In the spirit of the Reykjavik Declaration, the authorities should be further encouraged to continue making full use of the Council of Europe assistance programmes in the field of non-discrimination.

Preventive measures and awareness raising

It is recalled that in the present judgment, the Court noted the general negative attitude towards the members of the LGBTI community prevailing in Armenia at the material time and observed that some high-ranking politicians publicly endorsed the actions of the perpetrators against the applicant.[14] According to the 2023 ECRI Report, the LGBTI people living in Armenia have become more visible and active in the public sphere over the last few years. At the same time, intolerance towards them remains predominant.[15]

Against this background, the Committee might wish to call the authorities to continue taking determined action by conveying a clear zero-tolerance message towards any form of discrimination, hate speech and violence, in particular against LGBTI persons. It is also of utmost importance that the authoritiescontinue raising awareness at the highest level and among the general public about discrimination and prejudice experienced by LGBTI persons in order to help foster acceptance and the elimination of barriers against their further inclusion into the society.

Financing assured: YES