Information Note on the Court’s case-law 252

June 2021

Association ACCEPT and Others v. Romania - 19237/16

Judgment 1.6.2021 [Section IV]

Article 14

Discrimination

State’s failure to ensure LGBT event proceeded peacefully, without verbal abuse, and carry out effective investigation into homophobic motives of counter-demonstrators: violation

Facts – The applicants are an association (“first applicant”) promoting the interests of lesbian, gay, bisexual and transgender people (LGTB) in Romania and five individuals. On 20 February 2013 the first applicant organised the public screening of a movie portraying a same-sex family on the premises of a public museum, which was attended, inter alia, by the other applicants. The event was interrupted by a group of about 50 people who entered the venue shouting homophobic remarks, insulting and threatening the participants. Some of the intruders displayed fascist and xenophobic signs and brandished the flag of a former Romanian far-right party which had been dissolved by court order for fascist propaganda. The event could no longer continue but was rescheduled and took place on a later date. The investigation into the applicants’ criminal complaint, for incitement to discrimination, abuse of office by restriction of rights and the use of fascist, racist or xenophobic symbols in public, was discontinued by the prosecutor and their challenges thereto were unsuccessful.

Law

Article 14, taken together with Article 8: The Court examined this complaint in respect of the individual applicants, having found that the first applicant lacked victim status in this regard. It held that the applicants had suffered discrimination on grounds of their sexual orientation given that the authorities had failed to offer them adequate protection in respect of their dignity (and more broadly, their private life), and to effectively investigate the real nature of the homophobic abuse directed against them. More specifically:

(a) As to the obligation to protect – A sufficient number of police officers and gendarmes (“officers”) had been present on the premises from the beginning of the incident, after having been informed by the first applicant of possible opposition to the event. At no point had the officers been overpowered by the intruders. Nor did they claim that they had been caught unprepared and thus lacked the proper equipment to intervene. Yet, they had not stopped the counter‑demonstrators but had remained outside the room in which the incident occurred and largely refrained from intervening to de-escalate the situation and prevent the individual applicants from being bullied and insulted. This had been despite being aware of the views manifested by the intruders and having heard the contents of the slurs uttered by them. This also seemed to indicate a certain bias against homosexuals, which had also permeated their subsequent reports on the incident; these 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. Accordingly, the authorities had 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 their dignity against homophobic attacks by a third party.

(b) As to the obligation to investigate – the Court took into account the following elements:

– The applicants had lodged their criminal complaint within two weeks from the incident, with a detailed factual description and all the evidence at their disposal, including the officers’ reports and footage of the incident. The prosecutor’s office also had the names of some of the participants and intruders. Hence, at least the initial stages of the investigation should not have been too difficult. However, no significant steps had been taken for more than a year and the overall investigation had lasted more than four years and eight months.

– The intruders had never been investigated against despite the complaint having been also against them and none of them had ever been formally accused in spite of the applicants’ objections. The ones who had been identified by the police on the night of the incident, had only been interviewed as witnesses four years later.

– The authorities had deemed that the alleged threats or remarks had not reached the threshold required by the applicable law to constitute a criminal offence. The Court reiterated, however, that while being careful not to hold that each and every utterance of hate speech must, as such, attract criminal prosecution and criminal sanctions, comments that amounted to hate speech and incitement to violence, and were thus clearly unlawful on the face of things, might in principle require the States to take certain positive measures. Likewise, inciting hatred did not necessarily amount to a call for an act of violence or other criminal acts. Attacks on people committed by insulting, holding up to ridicule or slandering specific groups of the population could be sufficient for the authorities to favour combating racist speech in the form of freedom of expression exercised in an irresponsible manner.

– The applicants’ claim as to the attacks’ homophobic nature had not been duly explored. Investigation into the alleged display of fascist symbols had only started nearly two years after the incident whereas the homophobic reasons for the commission of the acts had not been mentioned in the prosecutors’ decisions.

– The language consistently used by the authorities in their reports about the incident and all involved, far from being neutral or accidental, suggested bias on their part against the individual applicants, which might be seen as indicating that the authorities had turned a blind eye to the homophobic overtones of the acts that had been perpetrated, thus jeopardising the accuracy and effectiveness of the domestic proceedings as a whole.

– No weight had been attached to the fact that the organisation that seemed to have been behind the attacks was notoriously opposed to homosexual relations or that the homophobic slurs in question had been uttered against the individual applicants.

The Court emphasised that the necessity of conducting a meaningful inquiry into the possibility that discriminatory motives had lain behind the abuse was absolute, given the hostility against the LGBT community in the respondent State and in the light of the evidence that homophobic slurs had been uttered by the intruders during the incident. In the absence of such an inquiry, prejudice-motivated crimes would inevitably be treated on an equal footing with cases without such overtones, and the resultant indifference would be tantamount to official acquiescence, or even connivance in, hate crimes.

In conclusion, the authorities had 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. In doing so, the authorities had shown their own bias towards members of the LGBT community.

Conclusion : violation (five votes to two)

Article 14, taken together with Article 11: The domestic authorities had failed to ensure that the event took place peacefully on 20 February 2013 by sufficiently containing the homophobic counter‑demonstrators. They thus fell short of their positive obligation to use any means possible to ensure that the applicants’ right to peaceful assembly had been respected. In reaching this conclusion, the Court primarily relied on its findings under Article 14, read in conjunction with Article 8 ruling, that were also pertinent to the examination of this complaint which extended to all the applicants. This was notwithstanding, the first applicant’s decision to stop the screening and reschedule the event, as the right to freedom of assembly included the right to choose the time, place and practical conditions of such an assembly, within the limits established in Article 11 § 2.

Conclusion : violation (unanimously)

Article 41: EUR 7,500 to the applicant association and EUR 9,750 to each individual applicant in respect of non-pecuniary damage

(See also Identoba and Others v. Georgia , 73235/12, 12 May 2015, Legal Summary ; M.C. and A.C. v. Romania , 12060/12, 12 April 2016, Legal Summary ; Beizaras and Levickas v. Lithuania , 41288/15, 14 January 2020, Legal Summary ; Berkman v. Russia , 46712/15, 1 December 2020, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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