Homophobia and Discrimination on Grounds of Sexual Orientation ...

European Union Agency for Fundamental Rightsensuring that both demonstrations can take place without either being disrupted, wherethis can be done without imposing on the authorities a disproportionate burden, forinstance an excessive presence of police. 2365.3. Demonstrations against LGBT people constituting anincitement to hatred, violence or discriminationMost EU Member States provide in their domestic legislation for the possibility ofbanning demonstrations which incite to hatred, violence or discrimination on grounds ofsexual orientation. 237 In most States, this possibility results from the existence of aprovision, contained either in legislation regulating assemblies or in the Criminal Code,prohibiting incitement to hatred, violence or discrimination. The next chapter contains adetailed analysis of such clauses.In certain cases, reference to sexual orientation is explicit. For instance, in Spain, Article510 of the Criminal Code provides that ‘conduct likely to incite discrimination, hatred orviolence against groups or associations for racist, anti-Semitic or other motives, relatedto their ideology, religion or belief, family situation, the belonging of their members to aparticular ethnic, racial, or national group, their sex, sexual orientation, illness ordisability, will be fined with a penalty from six up to twelve months or punished with aprison sentence from one up to three years’. In Northern Irel<strong>and</strong>, Part III of the PublicOrder (Northern Irel<strong>and</strong>) Order 1987, as amended by Criminal Justice No. 2 (NorthernIrel<strong>and</strong>) Order 2004, criminalises acts intended or likely to stir up hatred or arouse fearon grounds of sexual orientation. Such explicit references to sexual orientation mayprovide better guidance to the authorities, both within the Executive <strong>and</strong> in the Judiciary,about the possibility to ban homophobic demonstrations.By contrast, general references to incitement to hatred, violence or discrimination, evenwhen not limited to such incitement based on ethnicity, religion or nationality (whichwould not allow extension to incitement to hatred, violence or discrimination againstLGBT people – i.e., to homophobic demonstrations) <strong>and</strong> extended to ‘social groups’ or to‘a part of the population’, 238 risk being interpreted restrictively, in favour of freedom ofexpression, even in situations where the homophobic content of the message of thedemonstration is beyond doubt.236Eur. Ct. HR, Öllinger v. Austria, judgment of 29 June 2006.237No such possibility seems to exist, however, in Estonia, <strong>and</strong> possibly too in Malta. In these States, theprotection of freedom of assembly for pro-LGBT rights activists is therefore significantly weaker, sincesuch freedom will be considered no more worthy of protection that that exercised by counterdemonstrators,including when the latter shout anti-gay hostile slogans or promote a message whichincites to hatred, violence or discrimination against LGBT persons.238For example, section 11:8 of the Finnish Penal Code.114