Přehled
Rozhodnutí
SECOND SECTION
DECISION
Applications nos. 23911/15 and 18083/16
CASE OF PUBLIC ASSOCIATION “INFORMATION CENTRE GENDERDOC-M”
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 10 January 2023 as a Committee composed of:
Jovan Ilievski, President,
Lorraine Schembri Orland,
Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the applications against the Republic of Moldova both lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Public Association “Information Centre Genderdoc-M” (“the applicant association”), on 5 May 2015 and 9 March 2016 respectively;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the alleged official tolerance of discrimination against LGBT persons in the Republic of Moldova and the lack of remedies in this regard.
2. In the first application, two Moldovan politicians made statements and distributed a leaflet during a public lecture, in which they promoted discrimination and hate towards members of the LGBT community. The criminal investigations were eventually discontinued.
3. In the second application, a priest made homophobic statements, claiming that 92% of homosexuals were infected by HIV and that they should not be allowed to be employed in certain positions, that they were mentally ill, etc. The civil court action lodged by the applicant association against the priest was rejected because he had the right to express himself on the topic of homosexuality, in conformity with his religious convictions.
THE COURT’S ASSESSMENT
4. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
5. Relying on Articles 8, 10, 13, 14 and 17 of the Convention, the applicant association complained of the lack of protection by the State authorities against the hate speech uttered by two public figures and a priest against members of the LGBT community, the interests of which they represented.
6. Being the master of characterisation to be given in law to the facts of a complaint, the Court is not bound by the characterisation given by the applicant association (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). The Court considers that the applicant association’s complaints should be examined from the standpoint of Articles 8 and 14 (compare, for instance, Beizaras and Levickas v. Lithuania, no. 41288/15, §§ 106-130, 14 January 2020).
7. The Court notes first that the applicant association did not seek to represent any specific person affected by the acts complained of but complained in its own name.
8. It reiterates that the word “victim”, in the context of Article 34 of the Convention, denotes the person or persons directly or indirectly affected by the alleged violation. Hence, Article 34 concerns not just the direct victim or victims of the alleged violation, but also any indirect victims to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to an end (see Identoba and Others v. Georgia, no. 73235/12, § 43, 12 May 2015, with further references).
9. In the present case, the applicant is an association (compare and contrast Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, §§ 53 and 58, 15 March 2012, and Budinova and Chaprazov v. Bulgaria, no. 12567/13, § 51 and 68, 16 February 2021). The Court points out that an association cannot be allowed to claim, under Article 34 of the Convention, to be a victim of the acts or omissions which affected the rights and freedoms of its individual members who can lodge complaints with the Court in their own name (see, among others, Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, §§ 47-48, ECHR 2013 (extracts); Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12, §§ 115-116, ECHR 2013 (extracts); Fédération chrétienne des témoins de Jéhovah de France v. France (dec.), no. 53430/99, ECHR 2001-XI; and Association des Amis de Saint-Raphaël et de Fréjus and Others v. France (dec.), no. 45053/98, 29 February 2000, and Identoba, cited above, § 45). Therefore, the applicant association cannot complain in its own name of the breach of the rights of its members and beneficiaries (compare also Genderdoc-M and M.D. v. the Republic of Moldova, no. 23914/15, § 25, 14 December 2021).
10. It follows that the applicant association cannot validly claim, on the facts of the present case, to be either a direct or indirect victim within the meaning of Article 34 of the Convention, of a breach of Article 8 of the Convention, taken either separately or in conjunction with Article 14. The application is thus incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 2 February 2023.
Dorothee von Arnim Jovan Ilievski
Deputy Registrar President