The ECHR Ruling of June 01, 2021 in the case "Association ACCEPT and Others v. Romania" (complaint No. 19237/16).
In 2016, the applicants were assisted in preparing the complaint. Subsequently, the complaint was communicated to Romania.
The case appeals against the inability of the Romanian authorities to ensure the peaceful, non-verbally abusive holding of the event by the LGBT community and to carry out an effective investigation into complaints about homophobic motives of opponents of the event. The case involved a violation of the requirements of article 14 of the Convention.
The international LGBT Social Movement and its structural units are an extremist organization banned in Russia.
THE CIRCUMSTANCES OF THE CASE
The applicants are an association (the first applicant or the applicant association) representing the interests of lesbian, gay, bisexual and transgender (LGBT) people in Romania, and five other people. On February 20, 2013, the applicant association organized an open screening of a film about a same-sex family in a publicly accessible place, in a museum, which was attended by inter alia, and other applicants. The event was interrupted by a group of 50 people who entered the room, shouting homophobic remarks, insulting the participants of the event and threatening them. Some of those who entered displayed fascist and xenophobic symbols and waved the flag of the former Romanian far-right party, which had previously been dissolved by a court decision for propaganda of fascism. The event could not continue, but it was postponed and held at a later date. The investigation into the applicants' complaints of incitement to discrimination, abuse of authority by restricting rights and the use of fascist, racist or xenophobic symbols in public was terminated by the Prosecutor's Office, and the applicants' respective complaints against this decision were unsuccessful.
LEGAL ISSUES
Regarding compliance with article 14 of the Convention, considered in conjunction with article 8 of the Convention. The European Court examined the individual applicants' complaints in the present case, finding that the applicant association did not have victim status in relation to the alleged violations of convention rights. The European Court ruled that the applicants had suffered discrimination on the basis of sexual orientation, given that the Romanian authorities had not provided them with adequate protection of human dignity (and, more broadly, protection of their privacy) and had not conducted an effective investigation into the actual nature of the homophobic insults directed at the applicants.
(a) With regard to the duty to provide protection. Since the beginning of the incident, a significant number of police officers and gendarmes (hereinafter referred to as police officers) have been present in the building, since the applicant association reported possible protests in connection with the event. The protesters did not attack police officers. Also, the police officers did not claim that the protests took them by surprise and they did not have the proper means to intervene in the conflict. Nevertheless, they did not stop the protesters and remained outside the premises where the incident took place, and mostly refrained from intervening, reducing the intensity of the situation and preventing beating and insulting the applicants. This inaction took place despite the fact that the employees of the internal affairs bodies were aware of the position of the protesters, voiced by the latter, and heard the content of the insults they uttered. These circumstances seemed to indicate a certain bias of police officers towards homosexuals, which was also reflected in subsequent incident reports: they did not indicate homophobic insults against some applicants, and the incident was described in such a way that it completely excluded references to homophobic manifestations. Consequently, the Romanian authorities failed to properly assess the danger posed to the applicants by the protesters and to respond appropriately in order to protect the applicants' dignity from homophobic attacks by third parties.
(b) With regard to the obligation to conduct an investigation. The European Court has taken into account the following aspects of the case.
The applicants filed a motion to institute criminal proceedings within two weeks of the incident, while it contained a detailed description of the facts and all evidence available to the applicants, including police reports and video recordings of the incident. The Prosecutor's office also had the names of some participants of the event and protesters. Thus, at least at the initial stage, the investigation should not have presented significant difficulties. However, no significant action was taken for more than one year, and the investigation as a whole lasted more than four years and eight months.
No investigation was launched against the persons who broke into the event, despite the fact that complaints were filed against them, and none of these persons were charged, despite the objections of the applicants. Those persons identified by police officers on the evening of the incident were questioned four years later only as witnesses.
The Romanian authorities believed that the alleged threats or remarks during the incident had not reached the degree of brutality that, according to applicable law, could qualify them as a criminal offense. However, the European Court - although cautiously adhering to the presumption that not every hate speech should as such entail criminal liability and punishment - reiterated that comments containing hate speech and incitement to violence and thus clearly illegal may, in principle, require the State to adopt certain positive measures. mer. Similarly, incitement to hatred was not necessarily a call to violence or other criminally punishable acts. Attacks on people committed in the form of insults, ridicule or slander against a certain group of people could be sufficient for the authorities to begin combating racist statements made in the irresponsible use of the right to freedom of expression.
The applicants' allegations about the homophobic nature of the attacks on them have not been properly investigated. The investigation into the alleged demonstration of fascist symbols was launched almost two years after the incident, while the homophobic grounds for the actions complained of were not mentioned in the decisions of the prosecutors.
The wording constantly used by the Romanian authorities in the incident documents and related materials was far from neutral or casual and suggested the existence of bias on the part of the authorities towards individual applicants, which could be interpreted as the fact that the authorities turned a blind eye to the homophobic background of the events complained of, thereby jeopardizing the accuracy and efficiency of the proceedings the applicants' case as a whole.
No importance was attached to the fact that the organization that was apparently responsible for disrupting the applicants' event was known for its rejection of homosexual relations or that homophobic insults were voiced against individual applicants.
The European Court stressed that the need for a meaningful check on the likely existence of discriminatory motives for insulting the applicants was absolute, given the hostility towards the LGBT community in Romania and in the light of evidence that the persons who disrupted the event in the present case expressed homophobic insults. In the absence of such verification, crimes motivated by bias would inevitably be considered as other crimes without such motivation, and the absence of a difference in attitude would constitute official silence (or even connivance) of hate crimes.
Finally, the Romanian authorities failed to fulfill their positive obligation to conduct an effective investigation into whether verbal insults against the applicants constituted a crime motivated by homophobic attitudes. Thus, the Romanian authorities have demonstrated their bias towards members of the LGBT community.
RESOLUTION
The case involved a violation of the requirements of article 14 of the Convention, considered in conjunction with article 8 of the Convention (adopted unanimously).
Regarding compliance with article 14 of the Convention, considered in conjunction with article 11 of the Convention. The Romanian authorities did not ensure the peaceful holding of the event on February 20, 2013, limiting sufficiently the actions of homophobic protesters. Consequently, the Romanian authorities failed to comply with their positive obligation to use any available means to guarantee the applicants' right to respect for the right to freedom of assembly. In formulating this conclusion, the European Court first of all referred to its arguments regarding compliance with Article 14 of the Convention, considered in conjunction with Article 8 of the Convention, ruling that these arguments were also applicable to the consideration of this part of the complaint, which applied to all applicants. This conclusion did not depend on the decision of the applicant association to terminate the event (film screening) and schedule it for another date, since the right to freedom of assembly includes the right to choose the time, place and actual conditions for holding such an assembly within the limits established by paragraph 2 of article 11 of the Convention.
RESOLUTION
The case involved a violation of the requirements of article 14 of the Convention, considered in conjunction with article 11 of the Convention (adopted unanimously).
COMPENSATION
In the application of article 41 of the Convention. The European Court awarded 7,500 and 9,750 euros to the applicant association and each of the individual applicants, respectively, as compensation for non-pecuniary damage.
The international LGBT Social Movement and its structural units are an extremist organization banned in Russia.