Global Human Rights Defence

Association "Accept" and others v. Romania

Author: João Victor Stuart
GHRD intern: International Justice and Human Rights team 
LLB Federal University of Rio de Janeiro, Brazil. 

Background

The case Association ACCEPT and others v. Romania concerns the failure of the Romanian State in protecting the applicants from homophobic verbal aggressions and humiliations, and in conducting a thorough investigation into the case (LawEuro, 2019). 

 On February 20th 2013, the petitioners and an LGBT+ rights non-governmental association called ACCEPT organized an LGBT+ History Month festival inside a public museum (LawEuro, 2019). During the screening of a movie, a group of approximately 50 people invaded the movie session and started to shout insults at the audience, such as “death to homosexuals”, “faggots” or “you filthy”, and threaten them, among whom five of the complainers (LawEuro, 2019). The event was interrupted and did not continue after the rally.  

The applicants lodged a criminal suit against the aggressions for incitement to discrimination, abuse by restriction of rights and the use of fascist, racist or xenophobic symbols in public (HUDOC – European Court of Human Rights, n.d. p.02). Moreover, the applicants alleged that the Romanian police failed to protect the citizens that were inside the auditorium and to offer the necessary security for the event to continue in the following days. They also accused the Bucharest’s police department to be reluctant and slow in conducting an adequate investigation of the case (HUDOC – European Court of Human Rights, n.d. p. 02). 

However, on November 22, 2017, the Bucharest Court of Appeal issued its final decision, upholding 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 the incident. 

Jurisdiction of the ECHR

After the denial of the Bucharest appeal Court to acknowledge the Human Rights violations committed against the applicants, the association “ACCEPT” lodged an application before the European Court of Human Rights on 2 April 2016 (HUDOC – European Court of Human Rights, n.d. p. 02). 

The European Court of Human Rights is an international judicial body set up in 1959 in Strasbourg, France. Its main function is to rule on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights (The Court – Presentation, Information, Videos, n.d.). The Court’s jurisdiction spreads all over the 47 European States of the Council of Europe, and it can examine cases involving not only the citizens of these countries but also anyone who is present in their jurisdiction (The Court – Presentation, Information, Videos, n.d.). 

Romania is a State party to the Council of Europe, therefore, it is bound to the jurisdiction of the Court. For this reason, relying on articles 3 (prohibition of inhuman and degrading treatment), 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the Convention and Article 1 of Protocol No. 12 to the Convention (general prohibition of discrimination), the applicants complained about the lack of police protection against the intimidation and insults they suffered during the assault (European Court of Human Rights, 2021 p.02). They also used the articles to complain about the bias that exists inside the Romanian police department regarding the victims’ sexual orientation, and that prevented the appropriate investigation to take place in 2013 (European Court of Human Rights 2021 p.02). 

Furthermore, the applicants alleged that the lack of police protection that leads to the interruption of the event harmed their right to freedom of assembly, breaching out article 11 (freedom of assembly and association) along with article 14 (European Court of Human Rights 2021 p.02). Lastly, under Article 13 (right to an effective remedy), they complained about the lack of effective remedy for their complaints in the Romanian domestic legal system (European Court of Human Rights 2021 p.02). 

Jurisprudence of the ECHR on LGBT+ legal issues

The European Court of Human Rights has a solid jurisprudence when it comes to the preservation of LGBT+ people’s rights to freedom of assembly, prohibition to discrimination and the right to enjoy effective remedies. For example, in the case of Beizaras and Levickas v. Lithuania, a couple of two men alleged that they had been discriminated based on their sexual orientation because of the authorities’ refusal to launch a pre-trial investigation into the hate comments on the Facebook page of one of them (European Court of Human Rights, 2021 p.15). 

The Court held that the government of Lithuania, in this case, represented by the police agents, was responsible for violating articles 8 and 14 of the ECHR because it did not provide a reasonable explanation for not taking further steps towards an investigation against the offences (European Court of Human Rights, 2021 p.15). The Court added that this reluctance of the police originated from the prejudice against the applicant’s sexual orientation, which biased their decision. Therefore, the court concluded that the police did not grant the necessary protection to the applicants because of its disapproval regarding their private way of life, which constitutes a discrimination (European Court of Human Rights, 2021 p.15). 

Furthermore, in Baczkowski and others v. Poland, in which Warsaw’s Mayor Office refused permission for an NGO to organise a march in the streets of the city to raise public awareness about discrimination against LGBT+ people, women and people with disabilities because they did not submit a ‘traffic organisation plan’(Human Rights Law Center, 2017). A day before the protest, the Mayor’s Office had banned stationary assemblies that specifically protested against discrimination against homosexuals (Human Rights Law Center, 2017). 

Although the demonstration happened, the organizers claimed that the authorities’ refusal was motivated by discriminatory reasons as other organizations had their requests approved (Human Rights Law Center, 2017).  The Court held that the Polish government violated articles 11, 13 and 14 of the ECHR. The judges concluded that the authorities’ decision to forbid the march negatively interfered with the applicant’s right to freedom of assembly because protesting against discrimination is not prescribed in the Polish criminal legislation as a reason to reduce or ban the right to freedom of assembly (Human Rights Law Center, 2017). As this provision does not exist under the Polish criminal legislation, it makes the refusal of the Polish authorities illegal, and proves that they indeed violated articles 11 (freedom of assembly). 

Moreover, article 13 of the Convention requires a State to make a domestic remedy available if a person’s rights are infringed under art 11 (Human Rights Law Center, 2017), however, the Polish authorities failed to do so. According to the judges, this appropriate remedy became available to the applicants only after the date of the march, and not as soon as the Mayor forbade their manifest. They also stressed that this failure occurred exclusively because of the delay of the authorities’ decision in fixing the unlawful decision of the Mayor (Human Rights Law Center, 2017). In this sense, the Court found that the state’s response lacked a reasonable time limit, which in the case, amounted to the violation of article 13 (Human Rights Law Center, 2017). In addition, the Court considered the decision to ban the march as discriminatory, and then, in violation of article 14 of the ECHR. 

The situation of LGBT+ people in Europe

As much as Europe has achieved a high standard of protection of Human Rights, LGBT+ people are still victims of hazardous violations of their basic rights. 

The 2020 annual report of the International Lesbian, Gay, Bisexual, Trans and intersex association (ILGA-World) has flagged that the European Continent has been suffering from a rising far-right movement that threatens LGBT+’s rights (The International  Lesbian, Gay, Bisexual, Trans and Intersex Association, 2020 p.07). This scenario is responsible for the increasing surge of online hate speech and physical attacks against LGBT+. For example, the report stated that after Brexit, the anti-LGBT+ hate crimes and incidents in England and Wales rose from 5,807 in 2014-15, to 13,530 in 2018-19 (The International  Lesbian, Gay, Bisexual, Trans and Intersex Association, 2020 p.07).

When it comes to Eastern Europe, the scenario worsens. The report informs that the far-right and conservative political parties of Russia, Hungary and Poland have been issuing numerous decisions to ban LGBT+ events as well as to criminalize and prosecute the participants of such events (The International  Lesbian, Gay, Bisexual, Trans and Intersex Association, 2020 p.07).

The ILGA-World also sent some legal comments about the case of ACCEPT Association and Others v. Romania to the ECHR’s chambers a few years after the association lodged the application. They brought interesting statistics about the critical situation of LGBT+ people in Europe. It highlighted a survey conducted by the EU Fundamental Rights Agency that gathered 93,000 responses to an online questionnaire on hate crimes and discrimination experienced by LGBT+ people in the 27 EU member states and Croatia (ACCEPT Association and Others v. Romania. Application No. 48301/08, n.d. p.02). 

The survey concluded that nearly 50% of the participants avoided some places and locations because they feared being assaulted, threatened or harassed. In Romania, this percentage went up to 61% (ACCEPT Association and Others v. Romania. Application No. 48301/08., n.d.). In addition, the EU’s agency survey demonstrated that 23% of the participants were open about their sexuality, while in Romania this number was much lower, only 7% (ACCEPT Association and Others v. Romania. Application No. 48301/08., n.d. p.02).  

Judgment 

Regarding the applicants’ claims about the failure of the police to fulfil its obligation to protect them, which corresponds to the violations of articles 3, 8 and 14 of the ECHR, the judges agreed that the minimum help the police offered to the 20 people in the auditorium who suffered the verbal abuses by the protesters was not enough to fulfil this obligation (European Court of Human Rights, 2021 p.03).  They convicted the State of Romania for not offering the necessary protection to the victims because, although there were several police agents in the location, all of them left the auditorium. 

The fact that the agents left the victims alone with the aggressors made the judges believe that they ignored the risk to the safety and dignity of the victims. For this reason, the State of Romania did not attempt to prevent the abuses, as it did not deploy an effective intervention to safeguard the well-being of the victims (European Court of Human Rights, 2021 p.02). 

Therefore, this failure of the Romanian police in fulfilling its duty to protect the victims resulted in serious offences that violated the prohibition of degrading treatment of article 3 of the ECHR (European Convention of Human Rights, n.d.). It also breaches article 8 because, in addition to abstain itself from interfering in people’s private life, the state must ensure that other private agents do not attack or reduce this privacy (European Court of Human Rights, 2020). As the police failed to comply with that, it constitutes a violation. 

Lastly, the police’s failure also contradicts article 14 because the reluctance of the police officers in stopping the offences was motivated by prejudicial reasons. Article 14 forbids different treatment among people when this treatment is not justified by reasonable and objective motives (Equality and Human Rights Commission, n.d.). The dislike for LGBT+ people is not an objective, nor a reasonable justification. 

Moreover, when it comes to the delay of 4 years and 8 months for the police to conclude an investigation on the hate crimes committed in the auditorium, the Court found the time range disproportional given the clear evidence of hate crimes in this case (European Court of Human Rights, 2021). In addition, the judges flagged that the police repetitively referred to the abuses as “discussions”, the perpetrators as “sympathisers” of far-right organisations and the victims as “followers” of same-sex relations (European Court of Human Rights, 2021). 

According to the court, both the investigation’s delay and the nomenclature used by the police reflected a biased approach taken by the police department concerning this case. In that sense, the Court concluded that the authorities had not taken reasonable steps to investigate the verbal abuses, and then, disregarded their obligation to investigate (European Court of Human Rights, 2021).

Concerning the claims related to the violation of the victims right to freedom of assembly (art. 11), the Court’s jurisprudence understands that the state must take appropriate measures to secure the peaceful conduct of assemblies and the safety of citizens (European Court of Human Rights, 2020). However, the police officers refused to interfere with the invasion of the auditorium, which convinced the judges to convict the State of Romania for failure in   ensuring the safety of the victims during their peaceful and lawful public demonstration (European Court of Human Rights, 2021).

The Court decided that there was no need to examine the issues raised under Article 13 and Article 1 of Protocol No. 12.

Conclusion

This case’s decision reinforced the commitment of the European Court of Human Rights to strengthen the rights of the LGBT+ community in the European continent by blocking the advancement of prejudicial and discriminatory movements in national contexts. It also highlights the prohibition against national policies that criminalize or contribute to undermine the right to freedom of assembly and privacy of minority groups. 

References

(2019, April 14). ASSOCIATION ACCEPT AND OTHERS v. ROMANIA (European Court of Human Rights) – LawEuro. LawEuro. https://laweuro.com/?p=932 

ACCEPT Association and Others v. Romania. Application no. 48301/08. (n.d.). The International Lesbian, Gay, Bisexual, Trans and Intersex Association. https://ilga-europe.org/sites/default/files/Attachments/association_accept_and_others_v_romania 

  1. (n.d.). HUDOC – European Court of Human Rights. European Court of Human Rights. Retrieved July 2, 2021, from https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-7037146-9498061%22]}

Equality and Human Rights Commission. (n.d.). Article 14: Protection from discrimination | Equality and Human Rights Commission. Retrieved July 2, 2021, from https://www.equalityhumanrights.com/en/human-rights-act/article-14-protection-discrimination 

European Convention of Human Rights. (n.d.). European Convention of Human Rights. https://www.echr.coe.int/documents/convention_eng 

European Court of Human Rights. (2020a). Guide on Article 8 of the Convention – Right to respect for private and family life. https://www.echr.coe.int/documents/guide_art_8_eng 

European Court of Human Rights. (2021b, June). Factsheet – Sexual orientation issues. European Court of Human Rights. https://www.echr.coe.int/documents/fs_sexual_orientation_eng 

European Court of Human Rights. (2021c, June). Press release. Police failure to prevent far-right invasion of gay film screening and homophobic abuse.

HUDOC – European Court of Human Rights. (n.d.). European Court of Human Rights. Retrieved July 2, 2021, from https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-7037146-9498061%22]} 

Human Rights Law Center. (2017, August 4). European Court of Human Rights Considers Obligation to Facilitate Peaceful Assembly, Association and Expression. https://www.hrlc.org.au/human-rights-case-summaries/baczkowski-ors-v-poland-2007-echr-154306-3-may-2007 

The Court – Presentation, information, videos. (n.d.). European Court of Human Rights. Retrieved July 2, 2021, from https://www.echr.coe.int/Pages/home.aspx?p=court&c 

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