European Court of Human Rights: even sexual perverts enjoy freedom of assembly

By J.C. von Krempach, J.D. | June 13, 2012

Moldova is a country that in the past years has become a focus point of relentless LGBT campaigning. The reason is that this country is relatively small and very poor, and that it seeks to knit closer economic relations with the rest of Europe. This makes it easy for the LGBT lobby to use the political clout of European institutions to promote their sinister agenda. One part of the strategy is to tell Moldova that it must adopt laws that provide far reaching legal privileges to the homosexual community in order to comply with so-called “EU standards”. But in reality those standards do not exist in the EU – they are a mere invention of certain policy advisers. One example was a proposal for a new “anti-discrimination law”, drafted under pressure from the EU Delegation in Chisinau. When the Moldovans finally noticed that the proposal for which the EU advisers lobbied by far exceeded what is foreseen in any EU Directive, they adopted a downgraded version that does not include “sexual orientation” as a possible ground of discrimination, except in relation to discrimination in the workplace. Much to the disappointment of the LGBT lobby, it seems.

The other strategy that is used by the LGBT lobby is strategic litigation. Earlier this week the European Court of Human Rights (ECtHR) issued its judgment in the case of Genderdoc-M v. Republic of Moldova (no. 9106/06), in which it found that, by prohibiting a
demonstration that Genderdoc-M had planned to hold in Chisinau in May 2005 to promote interests of the gay community, Moldova had violated its obligations under Articles 11 (freedom of assembly or association), 13 (right to an effective remedy) and 14 (prohibition of discrimination).

Unfortunately, the judgment does little to clarify to which extent the LGBT lobby (or, for that matter, any other extremist group, should enjoy freedom of assembly, and under which circumstances the enjoyment of that right can be limited. ECtHR Decisions always concern the individual case (and thus usually have no wider implications than this). But in this case the defendant government itself conceded that there had been a violation of Article 11, so that the ECtHR could simply confirm this statement, without examining the facts and without explaining why those facts constituted a violation.

Remarkably, the Court found not only a violation of Article 11, but also a violation of Article 11 in conjunction with Article 14, i.e. that Genderdoc-M had been discriminated against with regard to the enjoyment of freedom of assembly.

The reasoning runs as follows:

52. The Court observes that in the present case the Government argued that the applicant association was not discriminated against on the basis of sexual orientation. Instead, the Government made the point that the applicant association’s demonstration was banned due to the existence of a systemic problem as to the right of assembly in Moldova during the period 2004-2006. The Court cannot agree with the Government, for the following reasons.
53. First, the Court observes that the applicant adduced as evidence decisions of the Chisinău Mayor’s Office allowing various assemblies and which had been adopted during the same period of time referred to by the Government (see above paragraph 44). The Government failed to offer an explanation as to this difference in treatment between the applicant association and the above-mentioned associations.
54. Second, the Court considers that the reason for the ban imposed on the event proposed by the applicant was the authorities’ disapproval of demonstrations which they considered to promote homosexuality. In particular, the Court highlights that the Chişinău Mayor’s Office – a decision-making body in the applicant’s case – has insisted two times before the Court of Appeal that the applicant’s assembly should be banned due to the opposition of many Moldovan citizens to homosexuality (see above paragraph 12).
Furthermore, the Court holds the view that when limiting the right of assembly, national authorities should offer clear reasons for so doing. However, as highlighted above, in the present case each authority which dealt with the applicant association’s request to hold a demonstration rejected it for a different reason.

This reasoning leaves us somewhat perplexed.

First of all, it is not consistent with the fact that were established further above in the judgment. As one can read there, the fact that the purpose of the manifestation was to promote homosexuality was only used by the Chişinău Mayor’s Office as an argument in an appeal against a court decision authorizing the event. But it was not on these grounds that the Supreme Court prohibited the manifestation. In actual fact, as one can read in § 17 of the ECtHR judgment, the Supreme Court found that “the applicant association had failed to give undertakings as regards a number of obligations required by the law in respect of assemblies, such as: to respect the law; to designate a person or persons in charge of the conduct of the demonstration; to create together with the police a group of people responsible for the maintenance of public order; to mark the site of the demonstration with special signs; to pay the Municipal Council any fees related to the arrangement of the site of the demonstration; to establish the route to and from the site of the demonstration; to provide the police with unfettered access to the site of the demonstration; and to forbid the participation of certain persons”. According to what the ECtHR itself has established as a factual base for its decision, the fact that the purpose of the planned manifestation was to promote homosexuality seems to have played no role in the decision made by the Supreme Court.

Secondly, even assuming (merely for arguments sake, and not because it is true) that the manifestation had been prohibited by the Supreme Court on the grounds that its purpose was to promote homosexuality, it should still be noted that this does not amount to “discrimination on the grounds of sexual orientation”. The “sexual orientation” of a person is not freely chosen – but its determination to promote homosexuality through public manifestations and other actions clearly is. The prohibition of such a manifestation may thus have been a violation of Article 11 – but to find a violation of Article 14 the Court would have had to demonstrate that the prohibition was issued in view of the sexual inclination of the organizers rather than in view of their agenda. There is nothing in the judgment to support such an assumption. Instead, there is every reason to believe (and we believe that even the LGBT lobby will agree on this) that the decision would have been the same if the organizers of the manifestation had not been homosexual.

The decision is therefore confuse and unsound – in short, typical for the ECtHR. Once again, it appears that the Strasbourg judges have been driven by political motivations rather than by sound legal reasoning.

Freedom of assembly: for gays and lesbians...

Maybe there will soon be an occasion for another decision, which hopefully will be more elaborate. According to media reports, following a request by LGBT activists to hold so-called “pride parades” (what is there to be proud of?????) in the Russian capital for the next century, the Moscow City Court has handed down a judgment that banspublic events that qualify as gay parades from March 2012 to May 2112. A courageous decision, but one that the LGBT lobby surely will try to bring to the ECtHR…

Should it be allowed to organize public manifestations with the purpose of promoting homosexuality? Or should the freedom of assembly be limited where the purpose of the assembly is a turpitude?

...and for Neo-Nazis

In Western democracies, and, more than elsewhere, in Germany, the freedom of assembly and the freedom of opinion are considered to be of such importance that even Neo-Nazis are allowed to hold public manifestations. Indeed, it is argued that those freedoms have the purpose of protecting the right to express even extremely controversial or unwelcome opinions and convictions, not only those accepted by all and everyone. It is a sign of strength for a democracy to grant these rights even to those who are themselves no democrats, or who seek to promote a perverse set of values that, if accepted, would quickly lead to the destruction of any society that embraces them. So, if Neo-Nazis should enjoy freedom of assembly (which they do), why not homosexuals?

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