Vejdeland v Sweden
Forum: European Court of Human Rights
INTERIGHTS’ role: Third party interveners
Keywords: Expression, sexual orientation
The European Court of Human Rights (the ‘Court’) finds unanimously that Sweden did not violate the right to freedom of expression of the applicants who had distributed leaflets containing offensive and insulting statements about members of the LGBT community. In doing so the Court, for the first time, applies principles developed in relation to hate speech in the context of sexual orientation and gender identity.
On 9 February 2012 the Fifth Section of the Court delivered its judgment in the case of Vejdeland and Others v Sweden. This case concerned the conviction of the applicants in Sweden for the criminal offence of agitation against members of the LGBT community in accordance with the Penal Code. The applicants had entered an upper-secondary school, of which they were not pupils, and distributed leaflets referring to homosexuality, inter alia, as a “deviant sexual proclivity” that has a “morally destructive effect on the substance of society”. The applicants claimed before the Court that their right to freedom of expression, pursuant to Article 10 of the European Convention on Human Rights, had been violated. The Court rejected this claim and, in doing so, reaffirmed the principle that discrimination based on sexual orientation and gender identity is as serious as discrimination based on race, origin or colour.
It found that while the statements contained in the leaflets did not incite persons to commit hate crimes they amounted to “serious and prejudicial allegations”. The Court noted in particular the fact that the leaflets were left in and on the lockers of “young people who were at an impressionable and sensitive age and who had no possibility to decline to accept them”. It also took into account that none of the applicants attended the school and that they did not have free access to the school. The Court also noted, in assessing the proportionality of the interference with the right to freedom of expression, that the penalties imposed by the Supreme Court of Sweden were not excessive.
The judgment was accompanied by three concurring opinions that illuminate the reasoning behind the Court’s decision. In particular two of the opinions place great emphasis on the fact the leaflets were distributed in a school setting. The concurring opinion of Judge Spielmann, joined by Judge Nussberger, noted that members of the LGBT community face “deeply rooted prejudices, hostility and widespread discrimination all over Europe”. The opinion makes reference to the Resolution adopted by the Committee of Ministers on 21 October 2009 relating to the collective complaint filed by INTERIGHTS against Croatia. It noted that statements stigmatising members of the LGBT community by the Croatian education system were criticised by the European Committee of Social Rights as clearly discriminatory. It also noted that there exists in educational settings throughout member states a “real problem of homophobic and transphobic bullying and discrimination”, an important acknowledgement that it considered may justify restrictions in freedom of expression.
The concurring opinion of Judge Yudkivska, joined by Judge Villiger, notes INTERIGHTS’ and ICJ’s request that the ECHR “consolidate an approach to hate speech” against members of the LGBT community and states that: “Cases like the present one should not be viewed merely as a balancing exercise between the applicants’ freedom of speech and the targeted group’s right to protect their reputation. Hate speech is destructive for democratic society as a whole, since 'prejudicial messages will gain some credence, with the attendant result of discrimination, and perhaps even violence, against minority groups', and therefore it should not be protected.” INTERIGHTS, along with the ICJ, intervened in this case arguing that a finding that States have a right to restrict hate speech directed at persons due to their sexual orientation and gender identity is consistent with its well-established jurisprudence in this area and, furthermore, is consistent with the Court’s obligation to provide practical and effective protection from human rights violations. Consistent with the third party intervention the Court has confirmed that sexual orientation and gender identity should be treated in the same way as categories such as race, ethnicity and religion, which are commonly covered by hate speech and hate crime laws, because they are fundamental to a person’s sense of self and used as a marker of group identity.
This decision is the first authoritative condemnation by the Court of hate speech committed against persons because of their sexual orientation and gender identity. As noted above, homophobic speech and bullying of members of the LGBT community, by both teachers and students, is prevalent in schools throughout Europe. It is hoped member states will act, including through awareness raising, education and other measures, to combat and prevent hate speech and discrimination against members of the LGBT community so as to ensure they enjoy the full range of rights under the Convention.
ICJ coverage (International Commission of Jurists).
ILGA Europe coverage. ILGA Europe is the European arm of the International Lesbian, Gay, Bisexual, Trans & Intersex Association.
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