A step backwards in hate crime legal practice in Strasbourg

On September 2nd, 2021 the ruling of the European Court of Human Rights has rejected our plea representing Andrea Giuliano, a gay rights activist. The Strasbourg court has therefore missed an opportunity to improve its case law on hate crimes against vulnerable group members.

According to Andrea Giuliano, the Hungarian Catholic Church and far-right groups take an active role in promoting homophobia across the country.

The gay rights activist, who is of Italian descent, sought to raise awareness at the 2014 Budapest Pride. He dressed up in a black priest’s cassock with a giant cross and held a sign which imitated the logo of the organization ‘Nemzeti Érzelmű Motorosok’ (Nationalist Motorcyclists) inside the silhouette of Greater Hungary. The original image of a motorcycle was substituted with a phallus and the organization’s motto ‘give gas’ altered to ‘give dick’, the organization’s name was also rebranded ‘Nationalist Dicksuckers’.

The provocative performance, which has not surpassed the limits of free speech, has upset several far-right groups. The website, kuruc.info published Andrea’s personal Facebook page, his address and workplace, encouraging readers to question the activist whether he has regretted his actions and to contact his employer. Another website with a similar ideological outlook, deres.tv has also published Andrea’s personal contact information, consequently he was flooded with messages such as:

“We know where you live, you will be hanged in front of your house you characterless dirty faggot!”

His employer has also received threatening messages and members of ‘Hatvannégy Vármegye Ifjúsági Mozgalom’ (a Hungarian far-right youth organization), including Jobbik’s former member of parliament, have shown up at his workplace. Andrea has filed a complaint to the police and sought legal assistance from HCLU. The Police initially began proceedings against defamation. Following our complaint, the Police have also started proceedings for the misuse of personal data and harassment, which were suspended a year later claiming that they were unable to find and identify anyone as perpetrator.

We have filed a complaint against the Police for suspending the proceeding on the basis of the lack of thoroughness of their investigation: They have not asked for international criminal legal assistance to help identify the hosting service provider of kuruc.info and they have not checked the Facebook profiles of the individuals sending threatening messages. In the complaint, we have also raised concerns that the Police have not investigated properly because our client is open about his sexual orientation. The prosecution rejected our complaint.

In the absence of further domestic legal remedies, we turned to the European Court of Human Rights in 2016, asking the Strasbourg judiciary to declare that the Hungarian authorities have not conducted an effective investigation. We believe they have violated our client’s right to privacy and his right to equal treatment: despite having the resources to identify the perpetrators, their negligence was related to our client’s sexual orientation.

Andrea came to Hungary in 2004-2005 as an exchange student, in 2007 he permanently moved to Budpaest for work. He learned to speak Hungarian fluently and felt at home in our country. Due to the threats and the authorities’ inaction he felt unable to remain in the country. In 2016 he relocated back to Italy.

The European Court of Human Rights found that the authorities have not made any wilful defaults which would have resulted in the violation of Giuliano’s rights. Therefore, surprisingly, the application was declared manifestly ill-founded and , therefore inadmissible (instead of a judgment finding no violation of the Convention rights). Although the events happened six years ago, a judgement finding a breach of the Convention by the Strasbourg court would have been significant, ashe Hungarian Government uses nowadays all means, such as tactics of media propaganda and legislative practices to fuel hatred against LGBTQ groups. With a favorable ruling to Giuliano’s case, the court of human rights could have made it clear that protecting minorities from hate crime is the state’s responsibility, which would have been impactful in the current political climate.

We acknowledge the decision with regret, but nevertheless we continue working on protecting the rights of vulnerable minorities, including demanding appropriate state reaction to hate crime.

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