ECHR Decree of 17 January 2017 in the case of Kiraly and Domotor v. Hungary (application No. 10851/13).
In 2013, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Hungary.
The case successfully examined the applicants' complaint that the authorities failed to fulfill their obligations to protect themselves from racist threats during the demonstration and to conduct an effective investigation of the incident. In the case there was a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicants are citizens of Hungary of the Roma nationality. In August 2012, there was a demonstration against the Roma. After the speeches, the demonstrators marched between houses inhabited by gypsies, threatening residents and committing acts of violence. The applicants complained that the authorities failed to fulfill their obligations to protect them from racist threats during the demonstration and to conduct an effective investigation of the incident in violation of Article 8 of the Convention.
ISSUES OF LAW
Compliance with the requirements of Article 8 of the Convention. (a) Applicability of the provisions of the Convention. Article 8 of the Convention covered many aspects of the physical and social identity of a person, and the ethnic identity of a person should be seen as another such element. The threats against the Roma in the course of the demonstration did not really translate into specific acts of violence against the applicants themselves. Nevertheless, the Court concluded that the fact that certain acts of violence were committed by at least some demonstrators and that after the demonstrations marched in the Roma district, shouting out threats that caused the applicants a well-founded fear of violence and humiliation. In addition, threats were directed against the inhabitants due to their belonging to an ethnic minority and, thus, inevitably affected the self-esteem and self-confidence of its members, including the applicants.
(b) Merits. The courts of Hungary decided that there was no legal basis for the dispersal of the demonstration, since it maintained a generally peaceful character, despite some hooligan acts. The European Court recognized that there were no signs of arbitrariness or apparent lack of diligence on the part of the authorities regarding the decision of the police not to disperse the demonstration. In particular, the domestic courts participated in assessing whether the actions committed by the police were professionally justified and whether they were sufficient to protect the applicants and the Roma community as a whole, stressing that the police took a number of preliminary measures and during the demonstration was between the protesters and local residents. Consequently, there was no need to call into question the findings of the Hungarian courts regarding the adequacy of the police response to the demonstration.
However, it remains a fact that the applicants could not escape a demonstration that defends racially motivated policies and intimidates them in relation to belonging to an ethnic group. The criminal investigation into the crime of incitement against the group was discontinued, as the authorities of the respondent State found that the speeches of the speakers during the procession were not covered by the relevant crime. The investigation was started on the fact of criminal violence, and the subsequent proceedings resulted in the conviction of one of the demonstrators.
The procedure for involving criminal law mechanisms was used as an appropriate factor for assessing whether the protection of the applicant's rights was defective to the extent that the positive obligations of the respondent State were violated in accordance with article 8 of the Convention. The domestic bodies had to pay special attention to the specific context in which the contested statements were made. The event was organized at a time when processions involving large groups and directed against Roma took place on a scale that could qualify as large-scale coordinated intimidation. Racist statements, together with the context in which they spoke, could constitute a clear and immediate threat of violence and violation of the rights of others.
The trial lasted almost three years, and its scope, according to the law, amounted to actual acts of violence. Although the police had enough time to prepare for the event and had to be able to interrogate many people after the incident, only five demonstrators were interrogated. Such a course of events made it impossible to establish the facts of the case and did not constitute a sufficient response to the real and complex nature of the situation complained of. The cumulative effect of the inadequacies of the investigation, especially the lack of a comprehensive law enforcement approach to events, led to an open racist demonstration with periodic acts of violence that left virtually no legal consequences, and the applicants were not provided with the required protection of their right to psychological integrity.
In the case there was a violation of the requirements of Article 8 of the Convention (adopted by five votes "for" with two - "against").
In the application of Article 41 of the Convention. The Court awarded the applicants EUR 7,500 in respect of non-pecuniary damage. (See also PF and EF v. The United Kingdom judgment of 23 November 2010, application no. 28326/09, The Grand Chamber of the European Court in Perincek v. Switzerland ( Perincek v. Switzerland) of 15 October 2015, complaint No. 27510/08).