Judgment 24225/19

Applicant type Legal person and natural peson (case only revolves around claims of natural persons)
Number of applicants 8
Application no. 24225/19
Date 30/11/2023
Judges Georges Ravarani, President,
 Lado Chanturia,
 Carlo Ranzoni,
 María Elósegui,
 Mattias Guyomar,
 Kateřina Šimáčková,
 Mykola Gnatovskyy
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Article 8 (and 9) + 14 ECHR Positive obligation
Type of privacy Private life; procedural privacy
Keywords Muslims stigmatised
Facts of the caseThe application concerns the State’s alleged failure to take adequate measures to protect the applicants from unlawful mob action, hate speech and other discriminatory actions by private parties in the context of their being prevented from opening a Muslim boarding school. The applicants (except for the first applicant, Georgian Muslim Relations) relied on Articles 3, 8 and 9 of the Convention in conjunction with Article 14. The first applicant complained under Article 1 of Protocol No. 1 of a violation of its right to the peaceful enjoyment of its possessions.
AnalysisThe alleged violent behaviour against the applicants consisted of insulting and discriminatory verbal expressions and acts such as blocking the applicants’ movement in the area, controlling their entering and/or leaving the building of the school, slaughtering a pig and nailing its head to the entrance door of the school, and the alleged shooting at the school building with a pneumatic rifle. The Court accepts the applicants’ allegation that the individuals involved in acts against them went beyond simply protesting against the opening of a Muslim school, and that they acted in a manner objectively designed to mock publicly, debase and instil fear in persons seeking to open the school, the seven individual applicants being among them. The Court also notes the applicants’ allegation that the acts against them were motivated by hostility towards their Muslim religious identity, which, if established, must be seen as an aggravating factor causing injury. However, although premediated and undoubtedly distressing, the Court is not convinced that the impugned acts were so severe as to cause to the applicants – all of them adults – the kind of fear, anguish or feelings of inferiority that are necessary for the Article 3 threshold to be reached. It notes that none of the applicants was present when a pig’s head was nailed to the door or shots with a pneumatic rifle were fired at the window of the school. The Court also notes that none of the children, who were allegedly present at some of the impugned events and were prevented from having classes in the school, has complained either before the domestic courts or this Court. The Court therefore considers that the Article 3 threshold has not been met in the present case.
As regards Article 8 ECHR, the Court notes that the notion of “private life” within the meaning of Article 8 is a broad term that is not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. The Court has accepted in the past that an individual’s ethnic and religious identity might fall within the personal sphere protected by Article 8. In particular, any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group. Consequently, although the Court does not accept the legal person as having suffered harm and also does not accept the claim of the applicants as a group, but only as a bundle of claims by natural persons each having suffered from individual harm, the ECtHR does accepted that they have each been harmed as a member of a group. Besides Article 8 ECHR, the Court finds that Article 9 ECHR is also relevant to the case, and both provisions should be seen in light of the prohibition of discrimination Article 14 ECHR.
The Court assesses whether the government has adhered to its positive obligation to ensure protection of the Convention rights in horizontal relationships, which required it to strike a balance between the right to freedom of expression and assembly of the protesters on the one hand, and the right to privacy and freedom of religion of the applicants on the other hand.  The court, however, finds that no proper consideration was given as to how to strike the appropriate balance in ensuring respect for the effective exercise of the rights of the individual applicants and the protestors. It is true, the Court finds, that the police presence ensured that no physical violence occurred between the protesters and the applicants and that no one was physically hurt during the events. There was likewise no destruction or damage of the school building in the relevant period of time. However, the authorities’ obligation to protect the applicants from recurring acts of intolerance and hate speech requires more decisive and constant actions to prevent the humiliating treatment that the applicants had to endure on account of, inter alia, the blockage of the school building and their movement in the area being controlled by protesters. That is why the Court concludes there was a lack of an adequate response by the authorities to continuous interference with the private life, dignity and religious beliefs of the applicants. In addition, it notes that no criminal investigation has ever taken place. More than eight years have passed since the initiation of the proceedings, and the investigation into the allegations of religious violent behaviour has not yet produced any findings. Moreover, the domestic
courts did not consider it necessary to order the police to ensure the identification and sanctioning of those responsible or taking any other measures aimed at permanently restoring public order in the neighbourhood and ensuring that the applicants’ religious rights were adequately protected. Instead, the domestic courts limited themselves to a finding that the police had not witnessed a single incident of disorder or violence.
The first applicant, a legal person, invokes Article 1 P1, on which point the Court finds a violation. It notes that the loss of the first applicant’s control over the school building, with all the consequences it entailed, cannot be reduced to private persons’ actions. The relevant authorities failed in the face of discriminatory and threatening actions, to take swift measures to stop the school blockage. In any event, the present case concerns also, in the context of the State’s negative obligations, the domestic authorities’ failure to connect the school building to the sewerage system of Kobuleti.
Other Article violation? Article 1 P1
Damage awarded hat the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to applicants nos. 2-8 each;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the first applicant;
(iii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into GBP at the rate applicable on the date of settlement and to be paid into the applicants’ representatives’ bank account in the United Kingdom;
Documents Judgment