Failure to adequately deal with homophobic verbal abuse and threats in Romania is a violation of ECHR
The case concerns Romania’s failure to protect the applicants - an LGBT non-profit association (Association ACCEPT) and five Romanian nationals (Alexandra Cândea, Alexandra Mihaela Carastoian, Ioana Ramona Filat, Diana Elena Mateescu, and Claudia Stănescu) - from homophobic verbal abuse and threats, to conduct a subsequent effective investigation into the applicants’ complaint, and the consequences of these incidents on the applicants’ right to freedom of peaceful assembly.
The applicants relied on Articles 3, 8, 11, 13 and 14 of the Convention, as well as on Article 1 of Protocol No. 12 to the Convention.
The Court found a violation of Article 14 of the Convention taken in conjunction with Article 8, and a violation of Article 14 of the Convention taken in conjunction with Article 11.
The facts
The incident
In February 2013, ACCEPT organised a series of cultural events to celebrate LGBT History Month. The programme included the screening of a movie portraying a same-sex family in a cinema situated in the National Museum for the Romanian Peasant in Bucharest.
ACCEPT became aware that an “online mobilisation” was taking place on social media platforms calling for a counter-demonstration during the screening at the Museum. They contacted the police and ten police officers from Bucharest police station no. 2, together with the head of that station, arrived on the premises to provide protection, and were later joined by a team of seven gendarmes.
About twenty people attended the public screening, including the individual applicants. Fifty more people entered the screen room, some of them carrying flagpoles, and disturbed the screening by shouting remarks such as “death to homosexuals”, “faggots” or “you filth”, and insulting and threatening attendees of the screening, including the individual applicants.
Some of the intruders displayed fascist and xenophobic signs and brandished the flag of Everything for the Country (Totul pentru ţară), a Romanian far-right party (since dissolved by court order). The intruders seemed to be associated with a far‑right movement, the New Right (Noua Dreaptǎ), which is active in political life and is openly opposed, among other things, to same-sex marriage and same-sex adoptions.
The organisers alerted the police officers who had been stationed outside the screening room. The police officers entered the room, confiscated some flags from the intruders and then left the room, despite the organisers’ request to remain.
The intruders opposed the screening as they considered that the movie damaged national dignity because of its homosexual theme, a feeling that had been aggravated by the choice of venue – a place of history and tradition. They blocked the projector, so the screening could not continue. The organisers halted the screening and switched the lights on.
As people started leaving the room, the police officers stationed in the corridor checked the identity papers of twenty-nine individuals, the majority of them from the group opposing the screening.
The screening was rescheduled and took place in the same location in March 2013 without incident.
Criminal complaint
On 5 March 2013, ACCEPT lodged a criminal complaint about the incident with Bucharest police section no. 2, alleging incitement to discrimination, abuse of office by the restriction of rights, and the displaying of fascist, racist or xenophobic symbols in public.
The complaint was lodged on behalf of ten individuals (including the individual applicants in this case) who had participated in the screening of February 2013. Those individuals complained that unidentified individuals had interrupted the screening, uttered threats, displayed fascist symbols, and filmed, photographed and videotaped the participants without their permission.
They furthermore complained that the authorities had failed to take adequate measures to prevent and stop the behaviour of the violent group and to allow the victims’ peaceful assembly to continue.
ACCEPT argued that those acts had been motivated by hatred towards homosexuals. ACCEPT appended information about the alleged perpetrators – details which, it believed, would contribute to the identification of the perpetrators and the roles that they had played in the incident and also attached to the complaint a video of the incident, which had been posted on the Internet.
In a decision of 24 June 2014, the military prosecutor’s office found that the gendarmes had been unable to create an action plan for dealing with the incident of February 2013 because ACCEPT had failed to seek the necessary pre-authorisation for that event. The prosecutor found that the gendarmes had complied with their obligations; the prosecutor then concluded the investigation in that respect.
In a decision of 14 October 2014, the prosecutor’s office attached to the Bucharest Court of Appeal ended its investigation on the grounds that the acts complained of did not constitute criminal offences. The description of the incident, which was depicted as “an exchange of views” between the participants, was similar to that contained in a report by the police.
For the next three years, the applicants sought to challenge the prosecutor’s decision, without success.
Complaints to the Court
Article 3 taken alone or in conjunction with Article 14
The Article 3 complaint related to the psychological effect that the incident of February 2013 allegedly had on the applicants, as members of the LGBT community.
The Government argued that the treatment allegedly suffered by the individual applicants had not reached the threshold of Article 3 of the Convention. They pointed out that no physical harm had been caused to the individual applicants and that no forensic certificates attested to any consequences suffered by them in the aftermath of the incident in question. As for the alleged mental effects on the applicants, they argued that there were no special circumstances regarding the sex, age or state of health of the applicants that could have justified deeming that the treatment allegedly suffered fell within the scope of Article 3.
The individual applicants contended that the infliction of physical harm was not a pre-condition for treatment being ruled “degrading”. Moreover, the aggression that they had suffered had not turned into physical violence only because the first applicant had decided to suspend the event – a decision that had been taken in order to protect the participants. They submitted that, in their view, the degree of severity of that treatment should be assessed in the light of the fact that the acts of aggression had been directed against the LGBT community and had been part of a series of homophobic acts of violence coordinated by the extremist group the “New Right”, which was notorious in Romania for its acts of violence – especially against the LGBT community.
The individual applicants also stated that the intruders had outnumbered the participants in the event by a factor of two to one, and the applicants had felt trapped inside the closed dark space of the cinema, had been afraid for their own safety and lives, and had been verbally abused, while the police had refused to intervene and had seemed to even condone the intruders’ actions. The ensuing feelings of fear, anguish and humiliation had continued even after the incident, as the aggressors had videotaped the applicants against their will and had posted those videos online, thus exposing them to additional stigma and hate speech.
The Court stated that the applicants had not pointed to any facts that could enable the Court to find that the level of mental suffering that they experienced as a result of the incident – or as a result of the manner in which the investigation into that incident took place – came close to the level that the Court has found in other similar cases to engage the State’s responsibility under Article 3 of the Convention with respect to situations of abuse on discriminatory grounds.
The Court stated that the applicant’s situation stood in contrast to Identoba and Others v Georgia and to M.C. and A.C. v. Romania, where verbal abuse and serious threats directed against the applicants – marchers promoting LGBT rights – were followed by actual physical assault on some of the applicants in circumstances in which they were surrounded and outnumbered by their assailants.
The Court stated that although the counter-demonstrators outnumbered and surrounded the applicants, they were continuously monitored by the police, albeit from the corridor outside the screening room where the incident took place. Moreover, no acts of physical aggression took place between the applicants and the counter‑demonstrators. And the verbal abuse, although openly discriminatory and performed within the context of actions that showed evidence of a pattern of violence and intolerance against a sexual minority, were not so severe as to cause the kind of fear, anguish or feelings of inferiority that are necessary for Article 3 to come into play.
On this basis, the Court found that the minimum level of severity required in order for the issue to fall within the scope of Article 3 of the Convention had not been attained and rejected the complaint as being manifestly ill-founded.
Article 8 taken alone or in conjunction with Article 14
The Court gave careful consideration to several issues concerning the admissibility of this aspect of the application, but declared it admissible in respect of the individual applicants (and in respect of Article 1 of Protocol No. 12 to the Convention).
The individual applicants argued that the authorities had been motivated by their own bias and prejudice against the LGBT community both when they had failed to intervene to stop the homophobic attacks of February 2013 and when they had failed to investigate the incident.
The Government pointed out that the protection afforded against hate crimes had been previously enhanced. The police had not intervened to stop the “discussions between the two parties” because there had been no need for such an intervention. Moreover, the fact that the case had been discontinued for lack of evidence did not render the investigation ineffective.
At the outset, the Court observed that the applicants’ complaint was twofold: on the one hand, they argued that the authorities (the police and gendarmes) had failed to protect them during the incident of February 2013, and, on the other hand, that the authorities (the prosecutor’s office and the courts) had failed to conduct an effective investigation which would have taken into account the homophobic connotations of the incident. The Court examined these aspects separately.
In respect of the obligation to protect, the Government argued that the police had been unable to intervene because the organisers had failed to properly secure prior authorisation for the event, but the Court stated that it could not see the relevance of this, and that the authorities (police officers and gendarmes) were present in sufficient numbers on the premises from the beginning of the incident. The Court stated that the police officers and gendarmes did not intervene effectively, despite them being aware of the views and opinions being manifested by the intruders and having heard the contents of the slurs uttered by them and, consequently, did not prevent the individual applicants from being bullied and insulted by the intruders. Subsequent reports drafted by the police and gendarmes contained no reference to the homophobic insults suffered by the individual applicants and described the incident in terms that completely disregarded any such manifestations of homophobia. As a result, the Court concluded that the authorities failed to correctly assess the risk incurred by the individual applicants at the hands of the intruders and to respond adequately in order to protect the individual applicants’ dignity against homophobic attacks by a third party.
In respect of the obligation to investigate, the Court examined a number of aspects of how the national authorities responded, including that the authorities consistently referred to the verbal abuse that was targeted against the individual applicants as constituting mere “discussions” or an “exchange of views”, and that no weight was attached to the fact that the organisation that seemed to have been behind the attacks was notoriously opposed to same-sex relations or that the homophobic slurs in question had been uttered against the individual applicants. The Court stated, therefore, that the authorities did not take reasonable steps to investigate whether the verbal abuse had been motivated by homophobia. As such, the Court concluded that the authorities failed to discharge their positive obligation to investigate in an effective manner whether the verbal abuse directed towards the individual applicants constituted a criminal offence motivated by homophobia and, because of this, the authorities showed their own bias towards members of the LGBT community.
In the light of these findings, the Court considered it established that the authorities had failed to offer adequate protection in respect of the individual applicants’ dignity (and more broadly, their private life), and to effectively investigate the real nature of the homophobic abuse directed against them. The Court therefore considered it established that the individual applicants suffered discrimination on the grounds of their sexual orientation and, consequently, that there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention.
The Court also concluded that it did not need to examine the complaint under Article 8 of the Convention alone, and that it was not necessary to examine separately whether there had also been a violation of Article 1 of Protocol No. 12 to the Convention.
Article 11 alone or in conjunction with Article 14
The applicants complained under Article 11 of the Convention, taken alone and in conjunction with Article 14, of the authorities’ failure to protect their right to freedom of peaceful assembly and to investigate the actions that had led to the interruption of the event organised by ACCEPT, and the Court declared this complaint admissible.
The applicants contended that the aim of the counter-demonstration had been to stop the event, and not to participate in a democratic debate. It had, inter alia, been aimed at inciting discrimination and violence, it had been held to oppose the rights of others, and it had hindered the normal course of a peaceful assembly. Despite those infractions to the law, the authorities had failed to intervene, and it had been no longer possible for the event to take place.
The Government argued that those who chose to exercise the freedom to manifest their views or expose their membership of a minority group could not reasonably expect to be exempt from all criticism. Specifically, the Government pointed out that the police had arrived in great numbers within a short space of time at the place where the incident was developing, in order to ensure the participants’ protection. Moreover, the authorities had conducted a thorough investigation into possible discriminatory reasons for the counter‑demonstration, and that the decision to halt the screening had been taken by the applicant association and had not been imposed by the police or the administration of the Museum.
The Court stated at the outset that the disruption of the screening of February 2013 undoubtedly amounted to an interference with the applicants’ right to freedom of peaceful assembly guaranteed by Article 11. The Court stated that, all in all, the domestic authorities failed to ensure that the event of February 2013 could take place peacefully by sufficiently containing the homophobic counter‑demonstrators. Because of their failures in this regard, the authorities fell short of their positive obligations under Article 14 taken in conjunction with Article 11 of the Convention.
Again, the Court did not feel that it was necessary to examine separately the admissibility and merits of the complaint under Article 1 of Protocol No. 12 to the Convention.
Article 13
The Court did not feel it was necessary to examine separately the admissibility and merits of the complaints raised under Article 13 of the Convention.
Commentary
The Court's judgment is welcome in relation to the violations it found for the individual applicants in respect of Article 14 of the Convention taken in conjunction with Article 8, and for all of the applicants in respect of Article 14 of the Convention taken in conjunction with Article 11.
The judgment sends another clear message to European States that they are under a positive obligation to protect LGBT people from abuse, to protect the freedom of peaceful assembly of LGBT people, and to rigorously investigate those who engage in hate-motivated acts against LGBT people. On this latter point, the Court repeated its now established view that "without [...] a rigorous approach on the part of the law‑enforcement authorities, prejudice-motivated crimes will inevitably be treated on an equal footing with cases involving no such overtones, and the resultant indifference can be tantamount to official acquiescence in, or even connivance with, hate crimes" (§ 124).
A question can be raised about whether the Court's decision to declare the Article 3 complaint inadmissible is appropriate, and whether it is consistent with the Court's previous Article 3 jurisprudence in this area.
The Court appears to suggest that the lack of physical aggression towards the individual applicants was decisive to its decision not to declare the Article 3 complaint admissible. Yet, in Identoba and Others, when dealing with homophobic language and actions (including death threats, and terms such as “crushing” and “burning to death”) which were then followed by actual physical assaults, the Court stated that "the question of whether or not some of the applicants sustained physical injuries of certain gravity becomes less relevant" because:
All of the [...] applicants became the target of hate speech and aggressive behaviour [...] Given that they were surrounded by an angry mob that outnumbered them and was uttering death threats and randomly resorting to physical assaults, demonstrating the reality of the threats, and that a clearly distinguishable homophobic bias played the role of an aggravating factor [...], the situation was already one of intense fear and anxiety. The aim of that verbal – and sporadically physical – abuse was evidently to frighten the applicants so that they would desist from their public expression of support for the LGBT community [...] In the light of the foregoing, the Court concludes that the treatment of the applicants must necessarily have aroused in them feelings of fear, anguish and insecurity [...], which were not compatible with respect for their human dignity and reached the threshold of severity within the meaning of Article 3 taken in conjunction with Article 14 of the Convention (§ 70-1).
Arguably, the situation described in Identoba and Others is very similar to the present case. In Identoba and Others, the Court placed emphasis on the "intense fear and anxiety" created by "hate speech and aggressive behaviour", albeit in the context of sporadic physical assaults. One reading of Identoba and Others is that the "fear, anguish and insecurity" that was deemed to fall within the scope of Article 3 was primarily created by the verbal abuse and threatening behaviour, and did not depend on the existence of the sporadic assaults. On this basis, given the extreme nature of the verbal abuse and threatening behaviour in this case, which led the applicants to fear for their safety and their lives, it is disappointing that the Court did not consider it to reach the threshold of Article 3.
Relatedly, the Court appears to have made a qualitative assessment of the "verbal abuse" in this case which, "although openly discriminatory and performed within the context of actions that showed evidence of a pattern of violence and intolerance against a sexual minority", it deemed not so severe as to cause the kind of "fear, anguish or feelings of inferiority" that are necessary for Article 3 to come into play (§ 56). Arguably, this is a strange conclusion given the nature of the verbal abuse to which the applicants where subjected. Why (as in this case) does the abusive language of "death to homosexuals”, “faggots” and “you filth” not reach the threshold of Article 3, when (as in Identoba and Others) the abusive language of "fagots”, “perverts” and "burning to death" does reach the threshold of Article 3?
It is vitally important that LGBT people are fully protected under Article 3 of the Convention, in order to address inhuman and degrading treatment. Silvia Falcetta and I discuss this in an article in European Law Review. It is disappointing that the Court concluded that the actions of a group of people entering a cinema and proclaiming "death to homosexuals”, and using the words “faggots” and “you filth”, in circumstances where the police failed to adequately provide protection, did not fall within the scope of Article 3 and, more importantly, amount to a violation of it.
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