ASSOCIATION ACCEPT AND OTHERS v. ROMANIA (European Court of Human Rights)

Communicated on 7 February 2019

FOURTH SECTION

Application no.19237/16
ASSOCIATION ACCEPT and others
against Romania
lodged on 2 April 2016

SUBJECT MATTER OF THE CASE

The application concerns 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.

On 20 February 2013 the applicants – an LGBT rights non-governmental organisation (“the first applicant”) and five private individuals (“the second to sixth applicants”) – attended a public screening of a film on the topic of LGBT rights, organised by the first applicant on the premises of a public museum. The screening was interrupted by a group of approximately 50 people who entered the venue and started screaming remarks such as “death to homosexuals”, “faggots” or “you filthy”, insulting and threatening the participants to the screening including the second to sixth applicants. Some of the intruders were holding a flag of the “Totulpentruţară” party, a former Romanian far-right party which had been dissolved by court order for fascist propaganda. The event was interrupted and could no longer continue.

The applicants lodged a criminal complaint for incitement to discrimination, abuse of office by restriction of rights and the use of fascist, racist or xenophobic symbols in public, claiming that the authorities had failed to take adequate measures to prevent and stop the behaviour of the violent group and allow their peaceful assembly to continue.

On 22 November 2017 the Bucharest Court of Appeal upheld with final effect the prosecutor’s decision to close the investigation because there was no evidence to sustain beyond any reasonable doubt that fascist symbols had been used in public.

Relying on Articles 3 and 8 of the Convention the applicants complain firstly that the State failed to fulfil its positive obligation to protect them from the degrading and humiliating treatment to which they had been subjected by private people on 20 February 2013. Secondly, they complain under the same Articles of the authorities’ failure to conduct an effective investigation into the incident of 20 February 2013.

Under Article 11 of the Convention the applicants complain about the authorities’ failure to protect their right to peaceful assembly and to investigate the actions which led to the interruption of their event.

The applicants also complain of a lack of an effective remedy for their complaints under the Convention in breach of Article 13 in conjunction with Articles 3, 8, 11, 14 and 1 of Protocol No. 12 to the Convention.

Lastly, the applicants complain that the authorities breached their positive obligation to protect them from discrimination and to conduct an effective investigation into their allegations of discrimination on grounds of sexual orientation contrary to Article 14 read in conjunction with Articles 3, 8 and 11 of the Convention and contrary to Article 1 of Protocol No. 12 to the Convention.

QUESTIONS tO THE PARTIES

1.  Did the treatment to which the second to sixth applicants were subjected on 20 February 2013 attain the minimum level of severity to fall within the scope of Article 3 of the Convention?

If so, having regard to the procedural protection from inhuman or degrading treatment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

2.  Has there been a violation of the second to sixth applicants’ right to respect for their private life, contrary to Article 8 of the Convention, on account of the authorities’ alleged failure to take adequate measures to prevent and stop the violent behaviour towards the applicants on 20 February 2013?

3.  Have the competent domestic authorities conducted an adequate investigation into the second to sixth applicants’ complaint concerning the events of 20 February 2013, as required by the procedural obligations under Article 8 of the Convention?

4.  In view of the disruption of the public film screening of 20 February 2013, has there been a violation of all applicants’ rights to freedom of peaceful assembly, contrary to Article 11 of the Convention, in particular concerning the manner in which the authorities fulfilled their positive obligation to investigate the incident?

5.  Did all applicants have at their disposal an effective domestic remedy for all their Convention complaints, as required by Article 13 of the Convention?

6.  In view of the disruption of the public film screening of 20 February 2013 and the authorities’ alleged failure to conduct a subsequent effective investigation, have all applicants suffered discrimination in the enjoyment of their Convention rights on grounds of sexual orientation contrary to Article 14 of the Convention read in conjunction with Article 11 of the Convention?

7.  Having regard to the incident of 20 February 2013 and the authorities’ alleged failure to conduct a subsequent effective investigation, have the second to sixth applicants suffered discrimination on the ground of their sexual orientation contrary to Article 14 of the Convention read in conjunction with Articles 3 and 8 of the Convention, and contrary to Article 1 of Protocol No. 12 to the Convention?

No. Applicant’s name Birth year/Date of registration Nationality Place of residence Representative
1.         ASOCIAȚIA ACCEPT 2000 Romanian Bucharest R.I. Ionescu
2.        Alexandra CÂNDEA 1981 Romanian Bucharest R.I. Ionescu
3.        Alexandra Mihaela CARASTOIAN 1988 Romanian Bucharest R.I. Ionescu
4.        Ioana Ramona FILAT 1980 Romanian Bucharest R.I. Ionescu
5.        Diana Elena MATEESCU 1980 Romanian Bucharest R.I. Ionescu
6.        Claudia STĂNESCU 1981 Romanian Bucharest R.I. Ionescu

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