Monday, 18 February 2013

Questions to the Parties in a complaint about Hate Crime in Romania

On 30th January 2013, the European Court of Human Rights issued Questions to the Parties in M.C. and A.C. v Romania (Application no. 12060/12). The case concerns complaints made by two applicants, Ms M.C. and Mr A.C. who are both Romanian nationals, about the failure of police to investigate violent hate crime committed against them on the grounds of sexual orientation.

A key aspect of the complaint is that the failure to investigate acts of criminal violence motivated by hatred of homosexuals, as well as the lack of adequate legislative and other measures to combat hate crimes directed against sexual minorities, violates the rights protected by Article 3 and Article 8 of the European Convention on Human Rights.

Details of the case are as follows:

 
The facts of the case
 
On 3 June 2006 the applicants participated in an annual gay march in Bucharest. It was organised by ACCEPT, a non-governmental organisation, whose object is to provide information and to assist the LGBT community. The march benefitted from police protection. Several individuals who had actively expressed their disapproval over the gay march were stopped by the police, their pictures were taken and their identity papers checked and recorded. At around 7 pm, at the end of the march, the applicants and four other participants left the area using the routes and means of transport recommended by the authorities in the guidelines prepared by the organisers for the participants in the march. As recommended in the same leaflet, they wore no distinctive clothing or signs that would identify them as participants in the march. In the metro they were attacked by a group of six young men and a woman wearing hooded sweatshirts. They came directly to the victims and started punching them and kicking their heads and faces. They were also swinging from the metal bars above their heads, kicking their victims. During the attack they kept on shouting: “You poofs go to the Netherlands!” (Poponarilor, duceţi-vă în Olanda!) The victims were pushed in the corner of the wagon. One of them tried to protect the others with his body, but the second applicant remained exposed and received several blows. The attack lasted for about two minutes. On their way out the attackers punched the first applicant again in the face. The other passengers withdrew on the opposite side of the wagon during the events. Among them was Z.E. who had also participated in the march as a photographer. The victims asked him to take pictures of the incident, which he did. As a consequence, the attackers slapped him as well.
 
In the same evening, together with a representative of ACCEPT, the victims went to Mina Minovici National Forensic Institute and to Bagdasar Emergency Hospital for medical consultations.
 
Mr A.C. was diagnosed with multiple contusions (related to the incidents), minor cranio-cerebral trauma, contusion on the left shoulder, on the left side of his face and bruises. No bone damage was found.
 
On the night of 3 to 4 June 2006 the victims, including the applicants, and a representative of ACCEPT went to the Bucharest Police Station no. 25. They filed a criminal complaint against the attackers and pointed out that the assault was based on the victims’ sexual orientation. They reiterated not having worn any visible signs that could have given away the fact that they were returning from the gay march. They argued that the attackers had identified them at the march (as they had not worn masks there either) and followed them afterwards, with the intent to harm them. They informed the police about the offensive remark made during the attack. According to the applicants, the police agents were surprised to see that the applicants and the other victims, although being gay, were well-off individuals with regular jobs and positions of responsibility. They tried to dissuade them from pursuing their complaint, warning them that they would have to confront their aggressors in trial.
 
On 5 June 2006 the applicants’ representative submitted to the police several pictures from the attack, taken by Z.E. In some of the pictures the attackers’ faces were visible, as their hoods were down. The photographer gave statements and could identify one of the perpetrators. Ms M.C. was also shown the pictures taken by police during the march. She was able to identify two of the individuals by their photos. The police had at their disposal the suspects’ names and addresses. Due to the reorganisation of the Police, the file was moved from one police station to another, and on 4 April 2007 it was registered at the Metro Police Station. As it appeared that nothing was happening in the case, the applicants sought information on the progress of the investigation (letters sent by ACCEPT on 25 September 2006, 28 March 2007 and 20 July 2011). On 19 March 2007 they also complained to the Ministry of Internal Affairs about the lack of an effective investigation in the case, but to no avail.
 
On 27 April 2007 they were informed that following the reorganisation of the Police their file was finally recorded by the Metro Police Station. The letter also informed the applicants that the investigation was on-going and steps were being taken to identify the culprits. On 9 August 2011 the Metro Police informed them that it was proposed to terminate the investigation as the alleged crimes had become statute-barred (s-a împlinit prescripţia specială). On 4 October 2011 the Prosecutor’s Office attached to the Bucharest District Court of the Fourth Precinct upheld the police proposal and decided to terminate the investigation. The decision was sent to Ms M.C's home on 27 February 2012. On several occasions the applicants asked access to the prosecution file, but their requests were repeatedly met with a refusal. On 19 March 2012 they lodged a complaint before the Prosecutor‑in‑Chief against the decision of 4 October 2011. They argued, among others, that the prosecutor should have investigated the more serious crime of organising a criminal group (asocierea pentru savârşirea de infracţiuni), which had not yet been time-barred. They also complained that the investigators failed to pursue their allegations that the attack had been motivated by the applicants’ sexual orientation. The complaint is currently pending before the Prosecutor’s Office.
 
The complaint to the ECtHR
  1. The applicants complain under Articles 3 and 8 of the Convention about the failure to investigate adequately their criminal complaints concerning acts of violence motivated by hatred against homosexuals, and more generally about the lack of adequate legislative and other measures to combat hate-crimes directed against sexual minorities. They point out that the investigation took too long and failed to identify the culprits despite the concrete evidence brought by them and the witness Z.E. They also aver that the authorities allowed deliberately the statute of limitation to be met. They reiterate further that the police agents were surprised to realise that gay persons could be well-off, and that they tried to persuade the applicants to withdraw their complaint. They argue that the authorities did nothing to address the general aversion against homosexuals in the society. They note that it was only on 11 August 2006 that the Criminal Code was amended to include the notion of aggravating circumstance of committing a crime on grounds of discrimination, including that based on one’s sexual orientation.
  2. Invoking Article 6 § 1 of the Convention, the applicants complain that they were hindered in their attempts to obtain civil damages by the ineffectiveness of the investigation and by the fact that the authorities allowed the offences to become statute-barred. They also reiterate that they are still unable to obtain copies of the prosecution file.
  3. The applicants complain that as the incidents occurred in relation to their participation in a peaceful assembly, the State breached its positive obligations under Article 11 of the Convention by failing to conduct effective investigations.
  4. Invoking Article 13 of the Convention together with Articles 3, 6, 8, 11 and 14 of the Convention, the applicants complain that they had no effective remedy at their disposal to complain either about the fact that the crimes against them had been motivated by their sexual orientation, or about the fact that the criminal investigation lasted too long and was inefficient, hindering thus their access to civil redress.
  5. Lastly, the applicants complain that when conducting the investigation, the authorities did not take into account the fact that the offences against them were motivated by their sexual orientation. They therefore failed to meet the procedural obligations enshrined in Article 14 of the Convention read together with Articles 3, 8 and 13, as well as those enshrined in Article 1 of Protocol No. 12 to the Convention.
Questions to the Parties
  1. Were the applicants’ complaints lodged with the Court with the expedition required by the six-month rule laid down in Article 35 § 1 of the Convention (see Manukyan v. Georgia (dec.), no. 53073/07, 9 October 2012)?
  2. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
  3. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
  4. Has there been a violation of the applicants’ right to respect for their private life, contrary to Article 8 of the Convention?
  5. In particular, regard having had to the positive obligations enshrined in Articles 3 and 8 of the Convention:
    (a) was the length of the criminal proceedings initiated by the applicants in breach of the requirements of expedition set by the Court in its case-law, concerning in particular the fact that the statutes of limitations were met in the case?
    (b) did the authorities remain neutral in their language and attitudes towards the applicants during the investigation?
    (c) did the authorities take fully into account the sensitive nature of the case before them?
    (d) did the applicants have access to obtain copies of the prosecution file?
  6. Has there been a violation of the applicants’ right to freedom of peaceful assembly, contrary to Article 11 of the Convention, in particular concerning the manner in which the authorities fulfilled their positive obligations to investigate the incidents?
  7. Did the applicants have at their disposal an effective domestic remedy for their Convention complaints, as required by Article 13 of the Convention?
  8. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Articles 3, 8, 11 and 13 of the Convention, and contrary to Article 1 of Protocol No. 12 to the Convention?
 


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