CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 mai 2022

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margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s53D4691F { width:35.23pt; display:inline-block } .s6B870CDD { width:153.11pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FOURTH SECTION CASE OF OGANEZOVA v. ARMENIA (Applications nos. 71367/12 and 72961/12)       JUDGMENT   Art 3 (+ Art 14) • Inhuman or degrading treatment • Positive obligations • Discrimination on the basis of sexual orientation • State’s failure to protect LGBT bar owner and activist from homophobic arson, physical and verbal attacks and to carry out effective investigation • Absence of effective domestic criminal-law mechanism for investigating discrimination complaints   STRASBOURG 17 May 2022 FINAL   17/08/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Oganezova v. Armenia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Yonko Grozev, President,   Tim Eicke,   Faris Vehabović,   Iulia Antoanella Motoc,   Armen Harutyunyan,   Gabriele Kucsko-Stadlmayer,   Ana Maria Guerra Martins, judges, and Ilse Freiwirth, Deputy Section Registrar, Having regard to: the applications (nos.   71367/12 and 72961/12) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Ms Armine Oganezova (“the applicant”), on 8   November 2012 and 15 January 2013 respectively; the decision to give notice to the Armenian Government (“the Government”) of the complaints concerning Articles 3, 8, 13 and 14 of the Convention, and to declare inadmissible the remainder of the applications; the observations submitted by the Government and the observations in reply submitted by the applicant; the comments submitted by the non-governmental organisations the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), the Advice on Individual Rights in Europe Centre (AIRE Centre), Human Rights Watch and the International Commission of Jurists, all represented by ILGA-Europe, who were granted leave to intervene by the President of the Section; Having deliberated in private on 5 October 2021 and 5 April 2022, Delivers the following judgment, which was adopted on that last-mentioned date: INTRODUCTION 1.     The application concerns the State’s alleged failure to protect the applicant from harassment, homophobic attacks and threats because of her sexual orientation and to conduct an effective investigation into her complaints. The applicant relied on Articles 3, 8, 13 and 14 of the Convention. THE FACTS 2.     The applicant was born in 1980 and lives in Nacka, Sweden. She was represented by Ms H. Petrosyan, a lawyer practising in Yerevan, Mr   M.   Hovsepyan, Director of PINK Armenia (Public Information and Need of Knowledge), a non-governmental organisation (NGO), Mr P. Leach, Ms   J.   Gavron, Ms K. Levine and Ms R. Remezaite, lawyers from the European Human Rights Advocacy Centre (EHRAC) based in London, and Ms J. Evans, also from EHRAC. 3.     The Government were represented by their Agent, Mr Y. Kirakosyan, Representative of the Republic of Armenia on International Legal Matters. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. BACKGROUND TO THE CASE 5.     The applicant, who is also known by the name “Tsomak”, is a well ‑ known member of the lesbian, gay, bisexual and transgender (LGBT) community in Armenia. She has been involved in promoting the rights of LGBT persons in Armenia and internationally. 6.     The applicant co-owned and managed a bar called the DIY Club (“the club”) in the centre of Yerevan, a place where members of the LGBT community would meet to socialise. 7.     In June 2011 the applicant participated in a gay pride march in Istanbul. While in Istanbul, she gave an interview to a local newspaper criticising Armenia’s human rights record. 8.     In August 2011 the applicant was contacted by Yerkir Media, a television channel associated with the Armenian Revolutionary Federation Party, and asked to give an interview to discuss her visit to Istanbul. 9.     After the interview was broadcast, the applicant became the subject of an online hate campaign, intimidation and threats on the basis of her sexual orientation. 10.     Shortly thereafter several persons entered the club to harass and intimidate the people gathered there. Fearing that the club would become a target for homophobic attacks, the applicant and the two other co-owners of the club, A.P. and N.D., arranged a meeting with A.K. and H.K., who were brothers, and two others who had been identified as the perpetrators of the incident. It was agreed during the meeting that there would be no further attacks. 11.     On the evening on 7 May 2012, A.P. saw a group of men loitering around the club premises. The group of men, which included A.K. and H.K., harassed and intimidated the club’s staff members. They were all wearing similar jackets with the logo “Black Ravens Armenia” which is associated with a neo-Nazi group operating in Armenia. THE ARSON ATTACK ON THE CLUB AND THE ENSUING INVESTIGATION 12 .     At around 5 a.m. on 8 May 2012 an arson attack was carried out on the club . The applicant was informed of the attack by a friend who happened to be passing by and saw that the club was on fire and that the fire brigade was at the scene. Upon arrival the applicant discovered that the interior of the club had been badly damaged. 13.     Shortly after her arrival, the applicant called the police. A number of forensic experts arrived and informed the applicant that no fingerprints had been found. 14 .     At 5 p.m. two police officers arrived at the club. They entered the premises, gave a contact telephone number and left immediately without asking any questions. 15 .     After the police officers left, the employees of a nearby business came to speak with the applicant and suggested watching the footage from their security camera, which showed a person breaking through the door of the club and throwing an explosive substance inside. A.P. then recognised A.K. on the footage. 16 .     Subsequently the applicant called the police again to describe what she had seen on the security camera footage. The police later arrived and took the security camera footage away. 17 .     On 9 May 2012 N.D. arranged a meeting between her, the applicant and A.K. and H.K. They informed the police of the location the meeting was to take place, where the two brothers were eventually apprehended. On the same date they were questioned and confessed to having set the club on fire after making sure that there was no one left inside. In their statement the brothers stated that the reason for the arson attack was the fact that the club was a gathering place for LGBT persons who brought shame on Armenia, and that the applicant was a lesbian who had participated in a gay pride march in Istanbul. 18 .     Later on the same day, the applicant and N.D. went to the police station to file a report. They were informed that A.K. and H.K. had confessed to the arson attack and the reasons behind it. According to the applicant, the police officers made it clear that they agreed with the actions of the two men. In her observations submitted after the Government had been notified of the application, the applicant claimed that the police officers had “justified the attack, condemning [her] activities ... commenting that as if it wasn’t enough that [she] was a homosexual, [she had also gone] to Turkey and performed music there”. The Government contested this. 19 .     During his interview on 10 May 2012, A.K. reaffirmed that he and his brother had carried out the arson attack on the club because it was a gathering place for homosexuals and, besides, the applicant had participated in a gay pride march in Turkey. A.K. also identified the third person (G.K.) who had been with them when carrying out the attack. 20 .     On the same date H.K. was also questioned and made similar statements. He stated that he had helped A.K. break the glass and that G.K. had only watched. 21 .     On the same date the police ordered a forensic fire examination. The results, including the estimation of the amount of pecuniary damage to be paid to the club, were issued on 21 July 2012. 22 .     On 11 May 2012 the police instituted criminal proceedings for intentional property damage under Article 185 of the Criminal Code. On the same date A.K. was arrested. 23.     On 12 May 2012 A.K. was questioned again and submitted that he had made his previous statements under duress. He had been ill-treated at the police station and forced to make self-incriminatory statements on his and his brother’s behalf. He refused to provide any details concerning the alleged perpetrators or to describe the circumstances of the alleged incident. 24 .     On 14 May 2012 A.K. was released on bail, sureties having been provided by A.M. and Hr.K., parliamentarians from the Armenian Revolutionary Federation Party. 25.     Subsequently A.K. and H.K. refused to make any further statements and denied the charges throughout the investigation. 26.     On an unspecified date the applicant joined the criminal proceedings as civil party, requesting that the damage caused to the club be compensated. 27 .     On 13 May 2012 charges were brought against A.K. and H.K. under Article 185 § 3 of the Criminal Code (intentional property damage resulting in substantial loss). 28 .     On 11 June 2012 the investigator ordered a forensic technical examination of A.K.’s and H.K.’s mobile telephones. The relevant expert report, which was received on 26 July 2012, indicated that the mobile telephones in question contained a number of swastika symbols, notes such as “White pride”, “Armenian pride, heil Armenia”, “We are fighting” (translation from Armenian written in Latin letters) and so on. EVENTS FOLLOWING THE ARSON ATTACK 29 .     On 10 May 2012 the applicant was informed that several young people had gathered in front of the club, acting aggressively and writing homophobic graffiti on the walls, much of which was directed specifically at the applicant, making it clear that she would not be allowed to reopen the club and that a further attack would be organised. The applicant called the police, who arrived following a considerable delay and did not undertake any measures to investigate the threats made to her. 30 .     In the following days, groups of people gathered outside the club seeking to intimidate and harass the applicant and supporters of the club. They also destroyed much of what was left in the club, spilling paint over the fixtures. They also left threatening homophobic comments on the walls, such as “Go to hell Tsomak”, “We will kill you Tsomak”, and so on. 31 .     On 11 May 2012 two human rights activists gave an interview to an online publication in which they discussed the arson attack on the club and the attitudes of society in general towards the LGBT community. Following the interview, an online group called “No to homosexuality” was created on Facebook and pictures of the applicant and several LGBT rights activists were posted online. A stream of insulting and threatening messages was posted about those individuals and members of the LGBT community generally. 32 .     On the same date the applicant gave a television interview in which she discussed the arson attack and the homophobic attitude towards the LGBT community. Following the interview, a significant number of threats and homophobic comments addressed to the applicant personally were posted mainly on Facebook and YouTube. In particular, the posts on Facebook included, among others, comments that the applicant “should die”, “should be burnt”, “[should be] put in an electric chair”. The comments posted on YouTube under a video concerning the arson attack, many of which contained severely abusive language, included, inter alia , the following: “good job, they should have put you [the applicant] inside and then set the [club on] fire” “... there is no place in our holy land for those like them [LGBT persons]” “... [the applicant] should be burnt” “you [LGBT persons] should get out of this city, Armenia is for Armenians not sluts” 33 .     In an interview given on 15 May 2012 A.M., when asked about the reasons for providing surety for the two men accused of the arson attack on the club, he stated, in particular, the following: “... in this case, I am sure that these young people behaved in the context of our societal and national ideology, in a right way. ... I consider that her type, I do not want to say a rude word, are destroying Armenian society ...” 34 .     In the evening of the same date, a group of men entered the club. They broke some of the remaining fixtures and drew swastikas and left threatening homophobic messages on the wall. 35 .     On 17 May 2012 three men, one adult and two teenagers, in black fascist uniform T-shirts, entered the club and began shouting abuse and threatening the applicant. They smashed some of the furnishings, spat at the applicant and blew cigarette smoke on L.A., an LGBT rights activist. The applicant was terrified and thought that she was going to be physically harmed. 36 .     On the same date the applicant and L.A. lodged a complaint with the chief of police. They described the incident that had taken place earlier that day, including the age and the clothing worn by the three men in question and the name of one of them. They submitted that the attackers had insulted them and threatened to return, adding that they would blow up the club anyway and that people like them should be annihilated. They requested that the assailants be identified and prosecuted and that their own safety be ensured in view of the fact that the attacks on them had already become regular. 37 .     In an interview published on the same date in an online newspaper, H.S., a parliamentarian from the then ruling political party, stated the following: “As a citizen I welcome those young persons [namely, A.K. and H.K.] ... in all countries there are groups of young persons who, by using the available means, fight against harmful manifestations, diversions and morbid manifestations threatening national and societal values. ... Sects and sexual deviants should be fought against by even more rigorous means ... At the same time, I call on people to refrain from extreme actions ...” 38 .     In a further request to the chief of police dated 18 May 2012, the applicant sought protection from regular attacks and harassment for her and her staff members. She also sought to prevent further damage to the property of the club. 39 .     On the same date E.S., the Deputy Speaker of the National Assembly, made the following statement: “As an Armenian citizen and member of a national conservative party, I find the rebellion of two young Armenians against the homosexuals who have created a den of perversion in our country and have the goal of alienating society from its moral values completely right and justified ...” 40 .     On 21 May 2012 a Diversity march took place in Yerevan which was attacked by a group protesting against it. According to the applicant, she was informed that a group of protesters had threatened to damage the club. Later that evening the applicant received a telephone call from the owners of a business next to the club informing her that around fifty men had entered the club and that they could hear considerable noise from the premises, mainly of objects being smashed. When the applicant arrived, there was no one left and there was a large poster hanging outside the building with an abusive message. The fixtures and furniture had been broken and the walls vandalised with threatening messages and swastikas. 41 .     The applicant reported the attack to the police, who arrived some time later. The police officers took a look around the club and left. 42 .     The applicant and many of her friends were subjected to homophobic abuse and threats online in the days following the Diversity march, to the extent that they were afraid to walk around the city and feared for their safety. The applicant’s sister also received threatening correspondence. A week after the arson attack, the applicant’s sister was asked to resign from her job as a waitress in a restaurant since the management did not want anyone to know that she worked there, because of the potential danger of the restaurant being attacked. 43 .     The applicant submitted to the police material printed out from various web pages which contained the relevant homophobic comments. At some point during the investigation into the arson attack, that material was transmitted by the department dealing with the case to the relevant police department with the request to undertake the necessary measures to identify the authors of certain comments which directly concerned the arson and the applicant. 44 .     On 25 May 2012 the police put in place protection measures in respect of the applicant and her closest relations. Those measures were implemented for a five-day period. 45 .     In response to an enquiry by the NGO PINK Armenia, in a letter of 11 June 2012 the police informed them that the applicant had lodged criminal complaints with regard to the incidents of 17 and 21 May 2012. Having regard to the pending investigation (into the arson attack) and the material gathered in respect of the incidents of 15, 17 and 21 May 2012, there was nothing to indicate that the police officers who had arrived at the scene had demonstrated an indifferent attitude. The police had reacted promptly when called in relation to the incidents and a relevant operational unit had been dispatched to the scene. Also, during that period a round-the-clock police patrol had been assigned to the club. Furthermore, considering that there existed a real danger threatening the applicant’s life, health and property as well as those of her closest relations, a decision had been taken to put in place protection measures in respect of them in response to the applicant’s request. 46 .     On 23 June 2012 the applicant and her sister left Armenia for Sweden. The applicant applied for asylum on the basis of persecution due to her sexual orientation. According to the applicant, her decision to leave Armenia was motivated by the constant threats that she was receiving online and from the stress and fear brought about by the people who gathered at the club for weeks after the arson attack. She was no longer able to earn a living after what had happened to the club, and was being supported by her sister until the latter lost her job. THE TRIAL 47 .     On 31 May 2013 the bill of indictment was finalised and the case was sent to the Kentron and Nork-Marash District Court of Yerevan (“the District Court”) for examination. The relevant parts of the indictment read as follows: “... [A.K.] and [H.K.] are members of a ‘Fascist’ group operating in [the Republic of Armenia] and are guided by the ideology of that group, that is, among other convictions, to be against homosexuality, therefore for the sake of the ‘high’ values of that ideology, having learnt that [the club] was a gathering place for homosexuals and that the manager of the club [the applicant] had visited Turkey and participated in an event dedicated to homosexuals, they had visited [the club] numerous times ... had spat on [the club], vomited in front of the door, thereby causing nuisance to the [club’s] management and expressing their discontent towards homosexuals ... ... on 7 May 2012 [A.K.], [H.K.] and an unidentified person, having come to a prior agreement to set [the club] on fire ... at around 4 a.m. on 8 May 2012 arrived at [the club] and ... intentionally set [the club] on fire using fuel that they had brought with them ... they then escaped, having caused property damage in the amount of 3,227,563   Armenian drams [AMD] ...” 48 .     In the proceedings before the District Court, A.K. and H.K. admitted the charges and requested that the case be examined in an expedited procedure. 49 .     It appears that at some point during the proceedings before the District Court, the mother of A.K. and H.K. transferred to the court’s deposit account an amount exceeding the estimated property damage to the club. 50 .     By a judgment of 25 July 2013, the District Court found A.K. and H.K. guilty as charged and sentenced them to two years’ imprisonment. At the same time, the District Court decided to impose a suspended sentence with two years’ probation. The District Court also granted the applicant’s civil claim in the amount of AMD 3,227,563, that is the estimated property damage. 51 .     The applicant lodged an appeal against the District Court’s judgment of 25 July 2013, arguing against the imposition of a conditional sentence. She submitted, inter alia , that the sentence imposed on A.K. and H.K. was too lenient in comparison to the gravity of the hate crime that they had committed and that the discriminatory aspect of the offence had neither been considered nor taken into account when assessing their actions. 52 .     On 23 October 2013 the Criminal Court of Appeal rejected the applicant’s appeal. In doing so, it upheld the District Court’s judgment in full. At the same time, it decided to exempt A.K. and H.K. from serving their punishment by virtue of the Amnesty Act adopted by the National Assembly on 3 October 2013. 53.     The applicant lodged an appeal on points of law. 54 .     On 25 December 2013 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. RELEVANT LEGAL FRAMEWORK RELEVANT DOMESTIC LAW The Constitution of 1995 Including the amendments introduced through a referendum on 27   November 2005 55 .     Article 14.1 read as follows: “Everyone shall be equal before the law. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or other personal or social circumstances shall be prohibited.” Including the amendments introduced through a referendum on 6   December 2015 56 .     Article 29 (prohibition of discrimination) reads as follows: “Discrimination based on sex, race, skin colour, ethnic or social origin, genetic features, language, religion, world view, political or other views, belonging to a national minority, property status, birth, disability, age, or other personal or social circumstances shall be prohibited.” The Criminal Code 57 .     The relevant provisions of the Criminal Code read as follows: Article 63 Circumstances aggravating criminal liability and punishment “1.     Circumstances aggravating criminal liability and punishment: ... (6)     offence motivated by ethnic, racial or religious hatred, religious fanaticism, retribution for other persons’ legitimate actions; ... (8)     offence committed against an apparently pregnant woman, as well as a child, other vulnerable person or persons dependent on the offender; ... (12)     offence committed in a manner endangering the public; ...” Article 185 Intentional property destruction or damage “1.     Intentional destruction or damaging of a person’s property which causes significant harm, shall be punishable by a fine from fifty to one hundred times the minimum salary or ... imprisonment for up to two years. 2.     The same offence which: (1)     was committed by arson, explosion or in another manner endangering the public; ... (4)     was motivated by ethnic, racial or religious hatred or religious fanaticism, shall be punishable by imprisonment for up to four years. 3.     Offences envisaged in the first and second paragraphs of this Article which: (1)     caused particularly grave harm; ... shall be punishable by imprisonment from two to six years.” Article 226 Incitement of national, racial or religious hatred “1.     Actions aimed at the incitement of national, racial or religious hatred, at racial superiority or humiliation of national dignity, shall be punishable with a fine from two hundred to five hundred times the minimum salary or imprisonment from two to four years. 2.     The actions envisaged in paragraph 1 of this Article, which have been committed: (1)     publicly or by mass media, with violence or threat of violence; (2)     by abuse of official status; (3)     by an organised group, shall be punishable by imprisonment from three to six years.” 58 .     On 15 April 2020 the Criminal Code was supplemented with Article   226.2, which reads as follows: Article 226.2 Public calls for violence, public justification or propaganda of violence “1.     Public calls for violence based on gender, race, skin colour, ethnic or social origin, genetic characteristics, language, religion, world view, political or other views, ethnic minority, property status, birth, disability, age or other personal or social circumstances , and public justification or propaganda of such violence, in the absence of the characteristics of crimes set out in Articles 225 § 4, 226, 226.1, 301, 385, 397.1 of this Code, are punishable by a fine from fifty to one hundred and fifty times the minimum salary, or by detention for up to two months, or by imprisonment for up to one year. 2.     The actions envisaged in paragraph 1 of this Article which have been committed: (1)     by a group of persons with prior consent or by an organised group; (2)     by abuse of official status, are punishable by a fine from one hundred and fifty to three hundred times the minimum salary, or by detention from two to three months, or by imprisonment from one to three years with or without deprivation of the right to hold certain positions or engage in certain activities.” RELEVANT INTERNATIONAL MATERIALS Council of Europe Recommendation Rec(2010)5 of the Committee of Ministers of the Council of Europe to member States on measures to combat discrimination on grounds of sexual orientation or gender identity 59 .     The relevant excerpts from Recommendation Rec(2010)5 adopted by the Committee of Ministers on 31 March 2010 read as follows: “The Committee of Ministers ... Recommends that member states: ... 2.     ensure that legislative and other measures are adopted and effectively implemented to combat discrimination on grounds of sexual orientation or gender identity, to ensure respect for the human rights of lesbian, gay, bisexual and transgender persons and to promote tolerance towards them; 3.     ensure that victims of discrimination are aware of and have access to effective legal remedies before a national authority, and that measures to combat discrimination include, where appropriate, sanctions for infringements and the provision of adequate reparation for victims of discrimination; ... I.     Right to life, security and protection from violence A.     “Hate crimes” and other hate-motivated incidents 1.     Member states should ensure effective, prompt and impartial investigations into alleged cases of crimes and other incidents, where the sexual orientation or gender identity of the victim is reasonably suspected to have constituted a motive for the perpetrator; they should further ensure that particular attention is paid to the investigation of such crimes and incidents when allegedly committed by law enforcement officials or by other persons acting in an official capacity, and that those responsible for such acts are effectively brought to justice and, where appropriate, punished in order to avoid impunity. 2.     Member states should ensure that when determining sanctions, a bias motive related to sexual orientation or gender identity may be taken into account as an aggravating circumstance. 3.     Member states should take appropriate measures to ensure that victims and witnesses of sexual orientation or gender identity related ‘hate crimes’ and other hate-motivated incidents are encouraged to report these crimes and incidents; for this purpose, member states should take all necessary steps to ensure that law enforcement structures, including the judiciary, have the necessary knowledge and skills to identify such crimes and incidents and provide adequate assistance and support to victims and witnesses. ... 5.     Member states should ensure that relevant data are gathered and analysed on the prevalence and nature of discrimination and intolerance on grounds of sexual orientation or gender identity, and in particular on ‘hate crimes’ and hate-motivated incidents related to sexual orientation or gender identity. B.     ’Hate speech’ 6.     Member states should take appropriate measures to combat all forms of expression, including in the media and on the Internet, which may be reasonably understood as likely to produce the effect of inciting, spreading or promoting hatred or other forms of discrimination against lesbian, gay, bisexual and transgender persons. Such ‘hate speech’ should be prohibited and publicly disavowed whenever it occurs. All measures should respect the fundamental right to freedom of expression in accordance with Article 10 of the Convention and the case law of the Court. 7.     Member states should raise awareness among public authorities and public institutions at all levels of their responsibility to refrain from statements, in particular to the media, which may reasonably be understood as legitimising such hatred or discrimination. 8.     Public officials and other state representatives should be encouraged to promote tolerance and respect for the human rights of lesbian, gay, bisexual and transgender persons whenever they engage in a dialogue with key representatives of the civil society, including media and sports organisations, political organisations and religious communities.” Report by the European Commission against Racism and Intolerance 60 .     The relevant parts of the report on Armenia published by the European Commission against Racism and Intolerance (ECRI) on 4 October 2016 read as follows (footnotes omitted): “2.     ECRI notes that Article 226 of the Criminal Code refers only to nationality, race, and religion as the characteristics of the victims of racist acts that are classified as criminal offences (hereafter ‘prohibited grounds’). ... This list of prohibited grounds does not include colour, language or ethnic origin. It does not refer to sexual orientation and gender identity either ... ... 25.     ECRI notes that Article 226 of the Criminal Code, which outlaws public incitement to hatred, does not mention sexual orientation or gender identity among its prohibited grounds. Furthermore, as indicated above (see § 2), the Criminal Code does not contain any provisions stipulating that homo/transphobic motivation constitutes an aggravating circumstance for any ordinary offence ... the Ministry of Justice is in the process of drafting amendments to the Criminal Code, which might include sexual orientation and gender identity in the list of prohibited grounds; they might also add to the Criminal Code a provision stipulating that homo/transphobic motivation constitutes an aggravating circumstance for any ordinary offence. ECRI believes that these additions are essential to ensure an appropriate level of protection for LGBT persons. 26.     ECRI recommends that sexual orientation and gender identity be expressly added to the prohibited grounds in Article 226 of the Criminal Code and that a provision be added to that Code explicitly stipulating that homo/transphobic motivation constitutes an aggravating circumstance for any ordinary offence. ... 90.     The little information available comes from various surveys and studies. According to a survey conducted in 2012 by a local NGO, 72% of the Armenian population believe that the state should take measures to ‘fight against homosexuals’. A survey released the same year by OECD and the Caucasus Research Centre revealed that 94% of the persons interviewed in Armenia would not want a gay neighbour. NGOs report that ‘society either believes that homosexuality is a disease to be treated or people simply do not wish to accept something which is different from their traditional understanding of morality and family.’ As a result, LGBT persons living in Armenia ‘exist, but not many are out in the open. They are hiding, though the general attitude is not negative; they are just seen to be ill people who are unfortunate to be born like that.’ Legislation 91.       A general equality clause is included in Article 14.1 of the Armenian Constitution, prohibiting discrimination on grounds of, among other things, gender and ‘other personal or social circumstances’. This clause mentions neither the ground of sexual orientation nor that of gender identity. As indicated in the section of this report on civil and administrative legislation, Armenia has no specific antidiscrimination act. However, the authorities have pointed out that, in accordance with Article 15.4 of the Judicial Code, it is possible to refer to the case law of the European Court of Human Rights in proceedings before national courts. Therefore, in principle, persons discriminated against on grounds of sexual orientation or gender identity could use this possibility before national courts. However, ECRI understands that, as was the case for hate speech (see § 46), general antidiscrimination standards have not been applied so far to LGBT persons in court proceedings, and the authorities have not provided ECRI with references to relevant case law in this respect. Moreover, since the burden of proof lies with the victim and there exists neither a legal definition of discrimination in Armenian law nor an adequate mechanism for investigating discrimination complaints, it remains difficult to prove discrimination cases on the grounds of sexual orientation or gender identity. Furthermore, ECRI reiterates that the Criminal Code does not refer to sexual orientation and gender identity as characteristics of the victims of racist acts that are classified as criminal offences (see § 2). Similarly, these grounds are not specified in Article 63 of the Criminal Code stipulating that, for any offence not referred to in relevant specific national law provisions, a racist motivation shall be considered an aggravating circumstance (see § 7 above). In this respect, it refers here to its recommendations in § 26.” Statement by ECRI 61 .     ECRI published a statement on 7 June 2012 about the events giving rise to the present application. The relevant statement reads as follows: “[ECRI] wishes to express concern about recent events in Armenia, involving leading political figures openly condoning homophobic violence. Setting a club on fire was characterised by a high-ranking State official as a rebellion against homosexuals, which was completely right and justified. And one of the persons arrested by the police in connection with the attack was bailed out by two members of parliament, who appeared to provide support for the alleged perpetrators in, inter alia , declarations made to the press. ECRI draws attention to the destructive consequences that such statements – and the various manifestations of hatred they have encouraged – are likely to have for the peaceful and tolerant society it has always tried to foster in Armenia and all other Council of Europe member States. In ECRI’s view, events of this nature create a dangerous sense of impunity which undermines, in a fundamental manner, overall respect for human rights. ECRI, therefore, calls on the Armenian authorities to investigate fully the underlying criminal acts with a view to establishing, inter alia , the motives of the alleged perpetrators. It also calls urgently on all Armenian political parties to distance themselves from such extreme forms of expression, which are clearly incompatible with the values that ECRI has always promoted.” The United Nations Human Rights Committee 62 .     The relevant parts of the Concluding Observations adopted by the Human Rights Committee at its 105th session, 9-27 July 2012, following consideration of the report presented by Armenia under Article 40 of the International Covenant on Civil and Political Rights read as follows: “6.     The Committee is concerned about the lack of comprehensive legislation on discrimination. It is also concerned about violence against racial and religious minorities, including by civil servants and high-level representatives of the executive power, and about the failure on the part of the police and judicial authorities to investigate, prosecute and punish hate crimes ... The State party should ensure that its definition of discrimination covers all forms of discrimination as set out in the Covenant (race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status). Further, the State party should combat violence and incitement to racial and religious hatred, provide proper protection to minorities, and ensure adequate investigation and prosecution of such cases ... 10.     The Committee is concerned at the discrimination and violence suffered by lesbian, gay, bisexual and transgender (LGBT) persons and rejects all violations of their human rights on the basis of their sexual orientation or gender identity (arts. 3, 6, 7 and   26). The State party should state clearly and officially that it does not tolerate any form of social stigmatization of homosexuality, bisexuality or transexuality, or harassment of, or discrimination or violence against persons because of their sexual orientation or gender identity. The State party should prohibit discrimination based on sexual orientation and gender identity and provide effective protection to LGBT persons.” Amnesty International 63 .     In its statement of 18 May 2012, Amnesty International made the following comments: “... On 8 May, self-described ‘fascists’ were caught on tape by a security camera as they threw Molotov cocktails through the windows of a gay-friendly bar in downtown Yerevan. Police reportedly arrived at the scene 12 hours later to investigate the arson attack. Two young men were arrested as part of the investigation, but were bailed shortly afterwards by two opposition parliamentarians from the nationalist Armenian Revolutionary Federation – Dashnaktsutyun Party (ARF), who condoned the attack, saying it was in line with ‘the context of societal and national ideology’. ARF leaders have distanced themselves from the bailout, saying that the parliamentarians acted in their personal capacity, but they have fallen short of publicly calling on their colleagues to apologize for supporting the alleged hate crime. [E.S.], spokesperson for Armenia’s ruling Republican Party and Parliament Vice Speaker told Hayots Ashkharh newspaper Thursday that, ‘As an Armenian citizen and member of [the ruling] national-conservative party, I find the rebellion of the two young Armenian people against the homosexuals ... completely right and justified ...Those human rights defenders, who are trying to earn cheap dividends from this incident, I urge them first and foremost to protect the national and universal values.’ Amnesty International believes this type of official discourse is dangerous, fuels discrimination and undermines the role of human rights defenders ...” The International Lesbian and Gay Association (ILGA) on the situation of the LGBT community in Armenia 64 .     In its report on the situation of the LGBT community in Armenia published in 2009, the ILGA made the following comments: “In principle, LGBT people have the same right to legal protection under the Constitution as all Armenian citizens. However, in practice LGBT people do not for the most part make use of this protection, as there is no guarantee that their rights will be upheld either in courts or in police stations. Numerous human rights reports and testimonies given to ILGA-Europe bear witness to the deeply negative, discriminatory attitudes towards homosexuals in law-enforcement bodies. They show that some LGBT people (mostly gay men and MtF transgender persons) who have been brought to police departments have been subject to torture, arbitrary detention and blackmail. ... The survey carried out by We For Civil Equality breaks down the types of harassment, violence and human rights abuses directed specifically at lesbian or bisexual women ...: 61% of those surveyed had experienced verbal harassment because of their sexual orientation, 31% were threatened with violence and 1.5% had been assaulted or wounded with a weapon, 37% had personal property damaged or destroyed and 13% had objects thrown at them for this reason. Further, 70% of these women were spat at, while 24% were punched, hit, kicked or beaten because of their sexual orientation, and 12% testified to being excluded or deliberately ignored. As regards sexual assault, 12% recorded that this had happened to them, 20% said they had been sexually harassed and 1.5% had been raped.”