PARTLY DISSENTING OPINION OF JUDGES GROZEV AND HARUTYUNYAN

1. While we agree with large parts of the substantive analysis under Article 14 in conjunction with Article 8, we could not follow the majority in finding a violation of those provisions, and on the identical complaint under Article 1 of Protocol No. 12 to the Convention, as we consider this complaint inadmissible for failure to exhaust the domestic remedies. This is in no way to be interpreted as belittling the importance of the human-rights issues at stake, either as far as the specific incident is concerned or with regard to the general issue of LGBT rights in Romania. With respect to the second, there are clear grounds for concern, as transpires from the findings of the ECRI report (see paragraph 43 of the judgment) – findings which should rightly inform the overall analysis of the Court.

2. However, the issue of domestic remedies in the present case is relevant both for the consistent interpretation of the Convention and for the development of adequate domestic remedies in the respondent State. We find this issue sufficiently important to justify a refusal to follow the majority’s decision on admissibility, thus preventing us from declaring this part of the complaint admissible.

3. The objection raised by the respondent Government in respect of the complaint under Article 8 in conjunction with Article 14 is that the applicants should have lodged a civil-law suit or a separate complaint with the National Council for Combating Discrimination (“the NCCD”), a remedy the applicant association had used, albeit unsuccessfully, on previous occasions (see paragraph 71 of the judgment).

4. The majority’s response to this objection by the Government is based on a previous judgment against Romania, namely M.C. and A.C. v. Romania (no. 12060/12, 12 April 2016) . In that judgment the Court found, in the context of a homophobic attack, that the failure by the police to establish the identity of the attackers had rendered futile any civil-law remedy or any remedy sought before the NCCD in so far as allegations of discrimination were concerned. In the present case, however, the applicants themselves have identified some of the assailants. Nonetheless, the majority accepted that this was not sufficient to distinguish the case from M.C. and A.C. v. Romania , as the identifying information “which the applicants duly presented to the investigative authorities along with their criminal complaint, did not in itself allow them to be able to identify their actual assailants” (see paragraph 83 of the judgment).

5. We find this response unsatisfactory for a number of reasons. First, the impossibility of establishing the identity of the individuals allegedly responsible for the violation of the applicants’ rights was a central argument for rejecting the Government’s objection of non-exhaustion in M.C. and A.C. v. Romania . And for good reason. It is easy to see why a civil or administrative remedy would not be effective if one cannot indicate a respondent. Without a respondent, it is not possible even to lodge a formal complaint in such proceedings. Once an individual can be indicated as a respondent in such proceedings, however, this objection is no longer valid. The reasoning followed by the majority, according to which the exact role and responsibility of an alleged assailant should be established before proceedings are initiated, is no longer convincing. It is precisely the purpose of such proceedings to establish the personal role and liability for the alleged violations of each and every one of the alleged assailants. To require that their role and responsibility is established in advance, before a complaint is filed, means to declare any civil or administrative remedy ineffective by definition.

6. This last point highlights a particular concern of ours with the approach taken by the majority. We find the suggestion that the Convention leaves no room for respondent States to calibrate their response as to what remedies to provide, and that it requires a criminal-law remedy in cases like the present one, difficult to accept. This is particularly important in the context of the principle of subsidiarity and the Court’s supervisory role as a secondary guarantor of human rights to the national bodies, which should take the lead in upholding human-rights standards at the national level. We disagree with such a position, both as a matter of existing case-law and as a matter of judicial policy.

7. The Court has generally required criminal-law remedies in cases involving attacks against the physical integrity of individuals, that is, cases falling under Article 3 of the Convention. It is relevant in this context to highlight that the key precedent on which the present case relies with regard to the exhaustion of remedies, M.C. and A.C. v. Romania, is an Article 3 case.

8. When it comes to complaints under Article 8, and where – as in the present case – no physical attack on a person has occurred, the Court has taken the approach that respondent States have a margin in choosing the appropriate positive measures. The Court has held that Article 8 of the Convention requires the effective application of criminal-law remedies, in relations between private parties, only in cases of serious attacks on the physical integrity of a person. Examples include the sexual abuse of a mentally handicapped individual (see X and Y v. the Netherlands , 26 March 1985, § 27, Series A no. 91); allegations of a physical attack against the applicant by three individuals, during which she was kicked and thrown down the stairs (see Sandra Janković v. Croatia , no. 38478/05, § 47, 5 March 2009); the beating of a thirteen-year old by a grown-up man, causing multiple physical injuries (see Remetin v. Croatia, no. 29525/10, § 91, 11 December 2012); and the beating of an individual causing a number of injuries to her head, requiring hospitalisation (see Isaković Vidović v. Serbia , no. 41694/07, § 61, 1 July 2014). In contrast, in respect of less serious acts between individuals which may cause injury to a person’s psychological well-being, the obligation of the State under Article 8 to maintain and apply in practice an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection (see Noveski v. the Former Yugoslav Republic of Macedonia (dec.), nos. 25163/08 and 2 others, § 61, 13 September 2016, and Söderman v. Sweden [GC], no. 5786/08, § 85, ECHR 2013).

9. In the context of hate speech, the Court has acknowledged that criminal sanctions, including against the individuals responsible for the most serious expressions of hatred, inciting others to violence, could be invoked only as an ultima ratio measure (see Beizaras and Levickas v. Lithuania, no. 41288/15, § 111, 14 January 2020). The Court has accepted the need for a criminal-law remedy only in a limited number of Article 8 cases. In those cases the intensity of the interference with privacy rights has been particularly acute. In R.B. v. Hungary , (no. 64602/12, 12 April 2016) the racist verbal abuse against the applicant was accompanied by threats of violence with an axe, and in Alković v. Montenegro , (no. 66895/10, §§ 8, 11, 65 and 69, 5 December 2017) the racist verbal abuse was accompanied by ten gunshots in the direction of the applicant’s home. In both cases the incidents occurred in the applicants’ homes, something that clearly had the effect of enhancing the sense of vulnerability, and the first took place in the context of a “pogrom-like” event. The present case, in our view, is of a sufficiently different nature. Though all the relevant circumstances were not clearly established, it is clear that the incident took place in a public setting, specifically a museum, in the presence of a large number of people, and did not involve a confrontation comparable to the facts in R.B. v. Hungary or Alković v. Montenegro . In addition, while the applicants rightly criticise the inadequate police response, the latter’s physical presence could not have but diminished the applicants’ sense of vulnerability.

10. Our last point concerns the efficiency of the response to hate speech. For such a response to be efficient, it has to take place at the domestic level. It might well be that the NCCD has in the past not been as efficient in responding to incidents of hate speech as one might wish. But it remains the institutional response designed by the respondent State to deal with such issues. By requiring a criminal-law remedy and circumventing the response which the NCCD was designed to provide (and could have provided), and by not allowing it even to play a role in the proceedings, we are not strengthening the human-rights protection system under the Convention.

Appendix

No.

Applicant’s Name

Year of birth / establishment

Place of residence

1

ASSOCIATION ACCEPT

2000

Bucharest

2

Alexandra CNDEA

1981

Bucharest

3

Alexandra Mihaela CARASTOIAN

1988

Bucharest

4

Ioana Ramona FILAT

1980

Bucharest

5

Diana Elena MATEESCU

1980

Bucharest

6

Claudia STÄ‚NESCU

1981

Bucharest