Failure of police to take into account discriminatory motives when investigating a homophobic attack amounts to a violation of ECHR - M.C. and A.C. v Romania

The Fourth Section of the European Court of Human Rights has issued its judgment in M.C. and A.C. v Romania. The judgment is significant in consolidating the Court's recently developed jurisprudence under Article 3 of the European Convention on Human Rights in respect of hate crimes committed against individuals because of sexual orientation (for a discussion see my earlier post on Identoba and Others v Georgia).

The facts

In June 2006 two people, M.C. and A.C., participated in the annual gay march in Bucharest, Romania. At the end of the march, they and four other participants left the area using the routes and means of transport recommended by the authorities. As also recommended, they wore no distinctive clothing or badges that would identify them as having participated in the march. After boarding a metro train, they were attacked by a group of six young men and a woman wearing hooded sweatshirts. The attackers approached them and started punching them and kicking their heads and faces. They also swung from the metal bars above their heads, kicking their victims. During the attack they kept on shouting: “You poofs go to the Netherlands!” They were pushed into a corner of the carriage. One of them tried to protect the others with his body, but A.C. remained exposed and suffered several blows. The attack lasted for about two minutes. On their way out of the carriage, the attackers punched M.C. again in the face.

The victims went to a Bucharest police station and filed a criminal complaint against the attackers and stated that the assault was based on their sexual orientation. Due to a reorganisation within the police force, the case file was moved from one police station to another, and on 4 April 2007 it was registered at the Metro Police Station. On 10 June 2011 the police stated their view that the investigation should come to an end and asked the prosecutor’s office not to institute criminal proceedings in the case. In response to a request from M.C. and A.C. for information, the Metro Police informed them that their intention was to not institute a criminal prosecution as the alleged crimes had become statute-barred. The police explained that the investigation had been rendered more difficult by the fact that the file had not arrived at the Metro Police office until a year after the events. Moreover, all the actions undertaken by police in order to identify the alleged culprits had failed. The prosecutor’s office endorsed the police proposal and decided to terminate the investigation. The prosecutor-in-chief dismissed an objection to this by M.C. and A.C. The District Court also dismissed their complaint. 

The complaint to the ECtHR

M.C. and A.C. complained under Articles 3, 6, 8 and 14 of the Convention and under Article 1 of Protocol No. 12 to 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 the LGBTI minority. They further complained 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 complained, therefore, that the authorities failed to meet the procedural obligations enshrined in the Articles of the Convention that they relied on.

The Court's judgment states that "when communicating these complaints, it considered that they would be more appropriately examined under Articles 3, 8 and 14 of the Convention and 1 of Protocol No. 12 to the Convention (which Protocol became applicable as regards Romania on 1 November 2006)". I find this confusing as when the Court communicated the complaint - which I wrote about back in 2013 - it issued questions to the parties that addressed Articles 3, 8, 11 and 13 of the Convention (taken alone and in conjunction with Article 14 of the Convention) and Article 1 of Protocol No. 12 to the Convention. 

Articles 3 + 14

The focus of the judgment is on the complaints raised under Article 3 taken in conjunction with Article 14. The Court concluded that the treatment to which M.C. and A.C. were subjected, which it said was "directed at their identity" (§ 119), must have aroused in them feelings of fear, anguish and insecurity that was not compatible with respect for their human dignity and reached the requisite threshold of severity to fall within the ambit of Article 3 taken in conjunction with Article 14 of the Convention.

In examining the way the domestic authorities had responded to the treatment of M.C. and A.C. the Court concluded that the investigations into the allegations of ill-treatment were ineffective as they lasted too long, were marred by serious shortcomings, and failed to take into account possible discriminatory motives. The Court was unanimous that there had been a violation of Article 3 (procedural limb) of the Convention read together with Article 14 of the Convention.

In reaching that decision, the Court stated:

the authorities did not take reasonable steps with the aim of examining the role played by possible homophobic motives behind the attack. The necessity of conducting a meaningful inquiry into the possibility of discrimination motivating the attack was indispensable given the hostility against the LGBTI community in the respondent State [...] and in the light of the applicants’ submissions that hate speech, that was clearly homophobic, had been uttered by the assailants during the incident. The authorities should have done so ‒ despite the fact that incitement to hate speech was not punishable at the time when the incidents occurred [...] ‒ as the crimes could have been assigned a legal classification that would have allowed the proper administration of justice. The Court considers that without such a rigorous approach from the law‑enforcement authorities, prejudice-motivated crimes would inevitably be treated on an equal footing with cases involving no such overtones, and the resultant indifference would be tantamount to official acquiescence to, or even connivance with, hate crimes [...] Moreover, without a meaningful investigation, it would be difficult for the respondent State to implement measures aimed at improving the policing of similar peaceful demonstrations in the future, thus undermining public confidence in the State’s anti-discrimination policy [...] (§ 124).

This is very significant because it amounts to saying that law enforcement officials, even in jurisdictions where there is an absence of legislation explicitly criminalising hatred on the grounds of sexual orientation, have a duty to investigate the homophobic motivation of any attack upon a person because to not do so is to connive with the attackers. 

Other complaints 

Having reached the conclusion that there had been a procedural violation of Article 3, the Court further concluded that it need not examine the remainder of the complaint raised under Articles 3 and 14 - namely that the police intentionally protracted the investigations for homophobic motives - and the allegations made under Articles 8 and 1 of Protocol No. 12. Moreover, the Court concluded that complaints under Articles 11, 13 and 14 were admissible but that it had examined the main legal questions and that there was no need to give a separate ruling on the merits of the complaints under these other Articles. 

Judge Kūris (Lithuania) dissented from this view, stating:

I regret to observe that overly laconic reasons for the rejection of “remainders of complaints” have become a long‑standing practice of the Court, not only in cases where the need for such rejection is self-evident but also in cases where it would merit more explicit consideration. I believe that the present case clearly belongs to the latter category.

I agree with Judge Kūris in principle, although I am not sure what examining the merits under the other Articles would have added to existing jurisprudence. The most important other Articles in this case are, to my mind, Articles 8 and 11 taken in conjunction with Article 14 and the Court has a well established body of jurisprudence relating to sexual orientation discrimination under those Articles. In principle, had the Court found a violation of Article 11 + 14 this would have added to its jurisprudence relating to sexual minorities'  freedom of assembly but, in my view, the finding of a violation of Article 3 + 14 is more important in sending the clear message to Contracting States that if they do not adequately address violence based on sexual orientation this will amount to a violation of an individual's absolute right not to be subject to inhuman or degrading treatment. As such, I find it difficult to complain that the Court concentrated on the procedural aspect of Article 3 which was, after all, the essence of M.C. and A.C.'s complaint (although, as Judge Kūris notes, if other violations had been found this would have had a bearing on the amount of compensation for non-pecuniary damage awarded to M.C. and A.C.).