Information Note on the Court’s case-law 195

April 2016

M.C. and A.C. v. Romania - 12060/12

Judgment 12.4.2016 [Section IV]

Article 14

Discrimination

Failure to take into account possible discriminatory motives in investigation of homophobic attack: violation

Facts – In 2006 the applicants participated in a Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) rally in Bucharest. The march was accomp anied by counter-demonstrations which, despite the police protection afforded to the participants, ended in several individuals being fined for disturbing the event. At the end of the march, the applicants were attacked by a group of individuals who also s houted homophobic insults. The subsequent criminal investigation was ultimately terminated in 2011, without the perpetrators of the attack having been identified.

Law – Article 14 in conjunction with Article 3: In the Court’s view, the aim of the physical and verbal abuse the applicants had been subject to had probably been to frighten them so that they would desist from their public expression of support for the LGBTI community. The applicants’ feelings of emotional distress must have been exacerbated by t he fact that they had been attacked because they were exercising rights guaranteed by the Convention, namely, participating in an LGBTI rally. Bearing in mind the reports prepared by several International instances, including the Commissioner for Human Rig hts of the Council of Europe, the Court acknowledged that the LGBTI community in the respondent State found itself in a precarious situation, being subject to negative attitudes towards its members. Therefore, the treatment to which the applicants had been subjected reached the requisite threshold of severity to fall within the ambit of Article 3 read in conjunction with Article 14 of the Convention.

As to the investigation of the incidents, the applicants had promptly lodged a criminal complaint and presen ted all the evidence at their disposal, evidence which they considered made it possible to identify at least some of the attackers. However, the authorities took no significant steps for a period of almost a year and, more than five years after the initial criminal complaint, they had not yet established the identity of the perpetrators. In addition, the Court observed several shortcomings in the investigation. In particular, the authorities did not take into account the role played by possible homophobic m otives behind the attack. This was indispensable given the hostility against the LGBTI community in the respondent State and in the light of the applicants’ submissions that clearly homophobic hate speech had been uttered by the assailants during the incid ent. 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 ac quiescence, or even connivance, in 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 underm ining public confidence in the State’s anti-discrimination policy.

Conclusion : violation (unanimously).

Article 41: EUR 7,000 each in respect of non-pecuniary damage.

(See Identoba and Others v. Georgia , 73235/12, 12 May 2015, Information Note 185 ; and, more generally, the Factsheet on Sexual orientation issues ; see also, in respect of suspected racially motivated violence, Nachova and Others v. Bulgaria [GC], 43577/98 and 43579/98, 6 July 2005, Information Note 77 , and, in respect of suspected religiously motivated violence, Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia , 71156/01, 3 May 2007, Information Note 97 )

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

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