Tutti Diversi, Tutti Uguali: Venice mayor’s stance under scrutiny.

At the end of august, Luigi Brugnaro, the mayor of Venice, made a name for himself by stating that: “There will never be a Gay Pride in my city”. Even though the issue was reported on worldwide, it only came to my attention during the inauguration of my current master’s programme on Human Rights and Democratisation. Several students thought it to be a farce that we had the honour of listening to a talk on human rights by a representative of mister Brugnaro himself. The question that is rightfully posed is whether a mayor, in the year 2015, still has the prerogative to uphold and enforce such a statement. This blog aims to address this matter through the jurisprudence of the European Court on Human rights with regards to Article 11 of the European Convention on Human Rights, concerning the freedom of assembly and association. All of the cases also involve complaints based on Article 14 ECHR, concerning the non-discrimination principle. Before digging into the existing case law, relevant general principles will be briefly touched upon.

General Principles
At the outset, it must be noted that any demonstration, thus including gay parades, has to be peaceful in order to fall within the ambit of Article 11. An assembly is considered peaceful “if the organizers have professed peaceful intentions and the conduct of the assembly is non-violent. Moreover, the term “peaceful” should be interpreted to include any conduct that may annoy or give offence, and even conduct that temporarily hinders, impedes or obstructs the activities of third parties”.[1]

To add to that, parades that demonstrate nudity, sexually explicit material or provocative behaviour or material also fall within the ambit of Article 11 ECHR. However, as will be discussed further , such parades seem more prone to justified interferences by the state on the basis of a less strict proportionality test. All of the cases that will be addressed in the second part concern peaceful assemblies, which do not demonstrate nudity, sexually explicit material of provocative behaviour or material.

Another observation that I want to put forward is the matter of permits and notification of an assembly, about which the Court said that “the institution of preliminary administrative procedures is common practice in Member States when a public demonstration is to be organized.  In the Court’s view, such requirements do not, as such, run counter to the principles embodied in Article 11 of the Convention, as long as they do not represent a hidden obstacle to the freedom of peaceful assembly protected by the Convention”. While this is an interesting perspective by which member states could possibly interfere with the freedom of peaceful assembly, this is excluded for the remainder of this piece.

The European Court’s stance
In 2007 a first opportunity for the Court to tackle the question of gay parades arose in the case of Bączkowski and Others v. Poland, in which the Court found that the refusal to issue a permit for a gay parade constituted a violation of both article 11 and 14 of the Convention. The Court’s reasoning in relation to article 11 was not very enlightening, as a lack of a legal basis to interfere was found, given that the domestic administrative tribunal quashed the mayor’s refusal. This left no room for the Court to analyse whether the prohibition was “necessary in a democratic society”. Nevertheless, it has not left the opportunity unused and gave strong signals with regards to what it deems necessary in a democratic society. These signals, as will be shown, have been put to good use in subsequent cases.

The Court found a violation of Article 14, on the basis of several strong arguments. First, there were six counter-demonstrations that were allowed to take place. Moreover, it was not shown or argued by the Government that those organisers had to provide the city with an equally elaborate plan of organisation to obtain a permit. Last but not least, and striking in light of the current circumstances in Venice, the Court attached great importance to statements made by the mayor in an interview. Even though the Court said that it cannot speculate on the existence of motives other than those explicitly mentioned in the administrative decision, it could not overlook the fact that the mayor had indicated that he would not be allowing a gay parade. In that regard, the Court noted that when a mayor exercises his freedom of expression, restraint is required when his view can be regarded as an instruction by civil servants whose employment and careers depend on their approval. Admittedly, in Bączkowski and Others v. Poland, the mayor’s statements were made while the request for permission of a gay pride was pending. The question whether the timing of any such statements is decisive seems to depend on the refusal being reasonably affected by those statements, a matter to be assessed on a case by case basis.

In 2010, with Alekseyev v. Russia, a second opportunity to grapple with homophobic mayors refusing gay parades presented itself to the Court. There were two main reasons for which the mayor in question refused the gay parades. The first was that allowing a gay parade would pose issues concerning security, while the second argument mainly relied on the protection of public morals. The latter argument seems the most interesting and relevant in our case. It was put forward by the applicants during the domestic proceedings that they had no intention whatsoever to exhibit nudity, engage in sexually provocative behaviour or criticise public morals or religious views. In light of those statements, the State tried to argue that it had a wide margin of appreciation “when granting civil rights to people who identify themselves as gay men or lesbians”, given the lack of a European consensus on these issues. The Court reacted firmly by stating that “In any event, the absence of a European consensus on these questions – those of same sex adoption or the right to marry – is of no relevance to the present case because conferring substantive rights on homosexual persons is fundamentally different from recognising their right to campaign for such rights”. In other words, given that there is a consensus on this matter, the margin of appreciation is narrow.

Two years later, Genderdoc-M v. Moldova was a case where the Court could have reaffirmed their foregoing decisions. However, the State of Moldova admitted that there was a violation of Article 11. On one hand, this can only be regarded as a positive signal. At the same time, the Court could otherwise have used this opportunity to uphold and further develop its case law with regards to gay parades under Article 11 ECHR. Notwithstanding this, the Court continued investigating the case through the lens of Article 14 of the Convention, where it found a violation based on two arguments. First, other demonstrations were allowed during that time, which constituted a difference in treatment the Government was unable to explain. Second, the reason put forward by the mayor’s office was that a gay parade would promote homosexuality, something which is strongly opposed by the majority of Moldovans.

Interestingly, two judges dissented from the decision of the majority. In my view, they put forward weighty reasons as to why the current case would not be a violation of Article 14, which are worth considering further. They base their argument on the case of Kozak v. Poland, where a principle regarding discrimination based on sexual orientation was elaborated, which compels the Court to assess “whether the applicant association’s assembly was banned solely on this ground”. In the case at hand, the dissenting judges found additional reasons for the ban, besides sexual orientation, in the fact that the organisers did not give undertakings as required by domestic law.[2] As the dissenting opinion points out: “The crux of the matter really lies in an assessment of the proportionality of the difference in treatment, as compared to other possible assemblies that were or were not allowed for the same reasons of public order”. Then again, the majority judges counter this by stating that the order in which arguments were raised, at a domestic level, shows the real intention of the local authorities, as the protection of public order was relied upon only at the last stage of the proceedings. In my view, this is more than convincing considering that where the difference in treatment is based on sexual orientation , the Court only allows a narrow margin of appreciation in the light of article 14. At the same time, this touches upon the question whether a decision can be considered discriminatory if only one of several aspects of the justification raised contravenes the non-discrimination principle, by matter of contamination. Unfortunately, attempting to answer this question goes beyond the scope of this piece and moreover, seems to be done on a case by case basis.

In the last judgement to date concerning gay parades, namely Identoba and others v. Georgia, the Court was able to venture into the positive obligations of a state in this area. The Court posed, as a general principle, that: “Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11 of the Convention”. Even more importantly, the Court stresses that: “The positive obligation is of particular importance for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimisation”. The Court applied these principles to the case at hand, concluding that the State should have advocated a tolerant stance as well as informed potential law-breakers of the nature of sanctions, given that they knew or ought to have known of the homophobic atmosphere in Georgia. Furthermore, the lack of police officers was also found to be a shortcoming on the part of the state, seeing that applicants informed the state 9 days beforehand. It is worth noting that the lack of police officers, their passive stance and the arrest of the complainants rather than violent counter-demonstrators amounted to a violation of article 3, in the form of degrading treatment.

Conclusion
The foregoing case law strongly suggests that the mayor of Venice will have to do his utmost to ban any gay parade in the future. As the Court puts it succinctly, “a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position”. All reasonable arguments have been already been tried and tested, with little success. He can only be applauded for his defiant statement, which seems to have put him in a vulnerable place vis-à-vis any supervision by the European Court of Human Rights. What’s more, we can surmise that he will be required to protect the people he so greatly despises. Of course, referring back to the general principles, any organiser of a gay parade has responsibilities as well – particularly compliance with domestic law – if he or she wishes to avoid supplying [homophobic] public authorities with a legitimate reason for banning such a march.

[1] http://www.osce.org/baku/105947?download=true, p. 15.

[2] Para. 17: “Such as: to respect the law; to designate a person or persons in charge of the conduct of the demonstration; to create together with the police a group of people responsible for the maintenance of public order; to mark the site of the demonstration with special signs; to pay the Municipal Council any fees related to the arrangement of the site of the demonstration; to establish the route to and from the site of the demonstration; to provide the police with unfettered access to the site of the demonstration; and to forbid the participation of certain persons. Moreover, the court considered that there was a risk that the demonstration would cause a breach of public order.”

 

Disclaimer: Statements expressed on this website are not official statements of EIUC or EMA. They are written under the responsibilities of the individual author.

Stefan Aelbrecht
About Stefan Aelbrecht 1 Article
From Belgium. Stefan has studied law at the University of Antwerp. Particularly interested in everything human rights-related.

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