London, 4 August 2011
On 26 July 2011 the lower house of the Italian Parliament voted against legislation to protect victims of homophobic and transphobic hate crime. The legislation was rejected by 293 votes to 250. The Equal Rights Trust (ERT) is concerned about this failure to implement important aspects of the right to equality.
The rejection of the Bill came despite reports of increasing attacks on LGBT persons in Italy. The 2010 OSCE report entitled Hate Crime in the OSCE Region – Incidents and Responses included reports of up to ten murders, 38 assaults and seven attacks on property directed at LGBT persons in Italy in 2009. Italian law currently addresses the incitement to commit or the commission of discriminatory acts, violent acts or provocation on racial, ethnic, national or religious grounds under Section 3(1) of Law No. 654/1975 as amended by Law N° 205/1993. The proposed Bill would have extended this protection to crimes motivated by reasons of LGBT status.
The rejection of this legislation represents a failure to implement important aspects of Italy’s human rights obligations, particularly those relating to the right to equality. Both the Human Rights Committee (see, for example, its concluding observations on the United States of America, dated 18 December 2006) and the Committee against Torture (see, for example, its conclusions and recommendations on Poland, dated 25 July 2007) have drawn attention to the need for states to address homophobic hate crimes as such in their criminal legislation. The Committee of Ministers of the Council of Europe has also made recommendations to this effect (see Recommendation CM/Rec(2010)5, dated 31 March 2010). This position accords with that found in Principle 7 of the Declaration of Principles on Equality (the Declaration), which reflects a moral and professional consensus among international human rights and equality experts. It states as follows:
“Any act of violence or incitement to violence that is motivated wholly or in part by the victim having a characteristic or status associated with a prohibited ground constitutes a serious denial of the right to equality. Such motivation must be treated as an aggravating factor in the commission of offences of violence and incitement to violence, and States must take all appropriate action to penalise, prevent and deter such acts.”
The Yogyakarta Principles, which elaborate how international human rights law applies to issues of sexual orientation and gender identity, provide in Principle 5 that states are obliged to impose appropriate criminal penalties for violence, threats of violence, incitement to violence and related harassment based on sexual orientation or gender identity.
In rejecting the Bill, politicians suggested that it would be unconstitutional to give special protection to LGBT persons, because they must be treated like all other persons in Italy. This has no basis in international human rights law and betrays a fundamental misunderstanding of its requirements related to equal rights. It is widely accepted that the right to equality does not simply require everyone to be treated the same. As Principle 2 of the Declaration confirms:
“Equal treatment, as an aspect of equality, is not equivalent to identical treatment. To realise full and effective equality it is necessary to treat people differently according to their different circumstances, to assert their equal worth and to enhance their capabilities to participate in society as equals.”
Speaking about the Italian Parliament’s rejection of the Bill, ERT Executive Director Dimitrina Petrova said:
“This is a disappointing failure by the Italian Parliament to protect LGBT persons in Italy from discrimination and violence. Any act of violence or incitement to violence that is motivated by the victim’s sexual orientation or gender identity constitutes a serious denial of the right to equality. The failure of the Chamber of Deputies to recognise the importance of this legislation shows disregard for Italy’s human rights obligations.”
To see the Declaration of Principle on Equality, click here
For the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, click here