ECtHR, Fourth Section, App. No.19237/16, [2021] ECHR 19237/16, 1 June 2021

Judge Grozev (President), Judges Vehabović, Motoc, Harutyunyan, Kucsko-Stadlmayer, Vilanova, Martins

The ECtHR ruled that Romania had breached the Article 14 rights of the individual applicants and the applicant association by failing to protect them from demonstrators who were permitted to disrupt the showing of a film with “homosexual overtones”, and by failing to take adequate measures against those involved. In reaching this conclusiont he Court inferred from the authorities’ failures “a certain bias against homosexuals”. The applicant association was not recognised as having standing in relation to the claim insofar as it was based on Article 8  but was recognised for the purposes of the claim under Article 14 and 11.  Nor did the Court accept that the threshold for the application of Article 3 was met by verbal abuse alone. It declined to consider the claim under A1P12.

This was a challenge brought, inter alia, under Articles 3 and 8, read with Article 14 of the Convention, and on A1P12 (the free-standing prohibition on discrimination) to the State’s alleged failure to protect the applicants from homophobic verbal abuse and threats and to conduct a subsequent effective investigation into the applicants’ complaint. The complaint arise from a series of cultural events organised the applicant association, ACCEPT which promoted the interests of LGBT people in Romania. Following publication of the programme an “online mobilisation” took place on social media platforms calling for a counter-demonstration during the proposed screening of a film. The applicant association notified the police and sought protection and 17 police and military officers attended at the screening which was attended by about twenty people including the individual applicants. Notwithstanding the police presence about 50 demonstrators entered the screening, some carrying flagpoles, 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 a Romanian far-right party which had been dissolved by court order. Officers who had been stationed outside the screening room entered, confiscated some flags from the intruders and then left the room, despite the organisers’ request to remain after which the intruders blocked the projector, halted the screening and switched the lights on.

The applicants made criminal complaints about the incident, alleging incitement to discrimination and abuse of office, and complaining of the display of fascist, racist or xenophobic symbols in public. The complaints were directed at the demonstrators and also at police and military officers who had, it was alleged, failed to take adequate measures to prevent and stop the behaviour of the violent group and to allow the victims’ peaceful assembly to continue. The applicant association argued that these acts had been motivated by hatred towards homosexuals. A criminal investigation was launched but concluded that the acts complained of did not constitute criminal offences. On appeal this investigation was found wanting because it had not considered allegations that the intruders had worn fascist symbols or interviewed the individuals who had participated in the incident but proceedings were eventually discontinued because the evidence did not prove beyond any reasonable doubt that the alleged criminal acts had in fact been committed.

The ECtHR did not accept that the applicant organisation had victim status other than in relation to Article 11 read with Article 14 (§§45-48). It did not accept that the treatment complained of reached the threshold required to establish a breach of Article 3 (§57), though it did accept that treatment could breach Article 3 “when it arouses in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them” and that “discriminatory treatment as such can in principle amount to degrading treatment within the meaning of Article 3 where it attains a level of severity such as to constitute an affront to human dignity. More specifically, treatment that is grounded in a predisposed bias on the part of a heterosexual majority against a homosexual minority may, in principle, fall within the scope of Article 3” (§52). The burden of proof in an Article 3 claim was that of “beyond reasonable doubt” which “may [be satisfied by] the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact” but was not satisfied on the evidence before the Court (§§52-53) in which (§56) “No acts of physical aggression took place between the applicants and the counter-demonstrators” and “[t]he 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”.

The Court accepted, however, that the matters in issue fell within the scope of Article 8 in that it (§68) “affected the individual applicants’ psychological well-being and dignity” irrespective of occurring “during a public event”, and consisted of “violent verbal attacks on the applicants, which … occurred in the context of evidence of patterns of violence and intolerance against a sexual minority”. At §98 the Court reiterated the general principles applicable to Article 14, stating inter alia that “the requirement to demonstrate an analogous position does not require that the comparator groups be identical”, and that “Article 14 … covers instances in which an individual is treated less favourably on the basis of another person’s status or protected characteristics” (citing Guberina v. Croatia, no. 23682/13, § 78, ECHR 2016, Škorjanec v. Croatia, no. 25536/14, § 55, 28 March 2017 and lso Weller v. Hungary, no. 44399/05, § 37, 31 March 2009). At §99 it stated that “particularly convincing and weighty reasons” were required to justify discrimination connected with sexual orientation and that “[w]here a difference in treatment is based on sex or sexual orientation, the State’s margin of appreciation is narrow.” At §§100-101 it referred to the positive obligations imposed by Article 8, stating at §102 that “criminal sanctions – including against individuals responsible for the most serious expressions of hatred, inciting others to violence – could be invoked only as an ultima ratio measure [but that] … where acts that constitute serious offences are directed against a person’s physical or mental integrity, only efficient criminal-law mechanisms can ensure adequate protection and serve as a deterrent factor [and] … that criminal-law measures are required with respect to direct verbal assaults and physical threats motivated by discriminatory attitudes”.

At §113, having noted the failure on the part of officers present to “prevent the individual applicants from being bullied and insulted by the intruders”, despite any evidence that they were overpowered or “caught unprepared”, and suggested that “the authorities’ attitude and decision to remain aside despite being aware of the content of the slurs being uttered against the applicants seems to indicate a certain bias against homosexuals, which also permeated their subsequent reporting on the incident at the cinema”, a majority of the Court “conclude[d] 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”. The majority further concluded at §126 that inadequate measures were taken to investigate whether the matters complained of had been motivated by homophobia. This being the case, and Romania having failed to provide any justification, the majority concluded at §128 that there was a violation of Article 14 read with Article 8 ECHR and reached the same conclusion at §146 in respect of Article 14 read with Article 11 but at §19 declined to consider the A1P12 complaint. It awarded the individual applicants EUR 9,750 in respect of non-pecuniary damage, together with any tax that might be chargeable, and the applicant association EUR 7,500. Two judges dissented on the grounds that the applicants had failed to exhaust domestic remedies.