FOURTH SECTION CASE of MC and AC V. ROMANIA
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FOURTH SECTION CASE OF M.C. AND A.C. v. ROMANIA (Application no. 12060/12) JUDGMENT STRASBOURG 12 April 2016 FINAL 12/07/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. M.C. AND A.C. v. ROMANIA JUDGMENT 1 In the case of M.C. and A.C. v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President, Vincent A. De Gaetano, Nona Tsotsoria, Krzysztof Wojtyczek, Egidijus Kūris, Iulia Antoanella Motoc, Gabriele Kucsko-Stadlmayer, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 1 March 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 12060/12) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, M.C. and A.C. (“the applicants”), on 6 February 2012. The President of the Section acceded to the applicants’ request not to have their names disclosed (Rule 47 § 4 of the Rules of Court). 2. The applicants were represented by Mrs R.I. Ionescu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 3. The applicants alleged, in particular, that the investigations into their allegations of ill-treatment motivated by discrimination against LGBTI (Lesbian, Gay, Bisexual, Transgender and Intersex) persons had not been effective. 4. On 30 January 2013 the application was communicated to the Government. 5. The applicants and the Government each filed written observations. In addition, third party comments were received from the Fédération internationale des ligues des droits de l’Homme (FIDH), the European arm of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), the Advice on Individual Rights in Europe Centre (AIRE Centre) ‒ all represented by ILGA ‒ and the Association for the Defence of Human Rights in Romania, Helsinki Committee (APADOR-CH), which had all been granted leave by the President to make written submissions to the Court (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). 2 M.C. AND A.C. v. ROMANIA JUDGMENT THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1978 and 1986 respectively and live in Bucharest and Curtea de Argeş respectively. A. The incidents as described by the applicants 7. On 3 June 2006 the applicants participated in the annual gay march in Bucharest. It was organised by ACCEPT, a non-governmental organisation whose goal is to provide information and to assist the LGBTI community. The march was given police protection. Several individuals who had actively expressed their disapproval over the gay march were stopped by the police, their pictures taken and their identity papers checked and noted. 8. At around 7 pm, at the end of the march, the applicants and four other participants left the area using the routes and means of transport recommended by the authorities in the guidelines prepared by the organisers for march participants. As recommended in the same leaflet, they wore no distinctive clothing or badges that would identify them as having participated in the march. 9. After boarding a metro train, they were attacked by a group of six young men and a woman wearing hooded sweatshirts. The attackers approached the victims directly and started punching them and kicking their heads and faces. They also swung from the metal bars above their heads, kicking their victims. During the attack they kept on shouting: “You poofs go to the Netherlands!” (Poponarilor, duceţi-vă în Olanda!) 10. The victims were pushed into a corner of the carriage. One of them tried to protect the others with his body, but the second applicant remained exposed and suffered several blows. 11. The attack lasted for about two minutes. On their way out of the carriage, the attackers punched the first applicant again in the face. 12. The other passengers withdrew to the opposite side of the carriage during the attack. Among them was a photographer, Z.E., who had also been at the march. The victims asked him to take pictures of the incident, which he did. As a consequence, the attackers hit him as well. B. The medical examinations 13. The same evening, accompanied by a representative of ACCEPT, the victims went to the Mina Minovici National Forensic Institute and to Bagdasar Emergency Hospital for medical consultations. M.C. AND A.C. v. ROMANIA JUDGMENT 3 14. The forensic medical certificate stated that the first applicant had bruises which could have been produced by blows from a hard object; they did not require “days of medical care”. 15. The second applicant was diagnosed with multiple contusions (related to the incidents), minor cranio-cerebral trauma, contusion on the left shoulder and the left side of his face, and bruises. No bone damage was found. The forensic medical certificate concluded that the applicant needed one to two days of medical care. C. The criminal investigation 16. Later that night of 3 to 4 June 2006 the victims, including the applicants, and a representative of ACCEPT went to Bucharest Police Station no. 25. They filed a criminal complaint against the attackers and stated that the assault was based on the victims’ sexual orientation. They reiterated not having worn any visible signs that could have given away the fact that they were returning from the gay march. They argued that the attackers had identified them at the march (as they had not worn masks) and followed them afterwards, with the intention of harming them. They informed the police about the offensive remarks made during the attack. 17. According to the applicants, the police agents were surprised when they realised that the applicants and the other victims, although gay, were affluent individuals with regular jobs and positions of responsibility. They tried to dissuade them from pursuing their complaint, warning them that they would have to confront their aggressors in court. 18. On 5 June 2006 the applicants’ representative submitted to the police several pictures of the attack taken by Z.E. In some of the pictures the attackers’ faces were visible, as their hoods were down. The photographer gave statements and was able to identify one of the perpetrators. 19. The first applicant was also shown pictures taken by the police during the march. She was able to identify two of the individuals from their photos. The police had the suspects’ names and addresses on record. 20. The victims gave statements to the police. 21. On 8 June 2006 the police received copies of fifteen police reports drawn up on the day of the march concerning administrative fines imposed on counter-demonstrators. 22. Due to a reorganisation within the police force, the case file was moved from one police station to another, and on 4 April 2007 it was registered at the Metro Police Station. 23. As it appeared that nothing was happening in the case, the applicants sought information on the progress of the investigation by means of letters sent by ACCEPT on 25 September 2006, 28 March 2007 and 20 July 2011. On 19 March 2007 they also complained to the Ministry of Internal Affairs about the lack of an effective investigation in the case, but to no avail. 4 M.C. AND A.C. v. ROMANIA JUDGMENT 24. On 27 April 2007 they were informed that, following the reorganisation within the police force, their file had finally been logged by the Metro Police Station. The letter also informed the applicants that the investigation was ongoing and steps were being taken to identify the culprits. 25. On the same day, the police submitted a request to the Romanian Intelligence Service (the “SRI”) to confirm whether R.S.A. – an intelligence officer who had been identified among the attackers – had been on an official mission that night. On 24 May 2007 the Intelligence Service asked for clarification concerning the nature of the request. It was not until September 2007 that the police were able to obtain a statement from R.S.A., who declared that he had been off duty that day and offered information on one other person in the group of attackers. The actions undertaken by the police to identify the other individuals remained without success. 26. The Metro Police received, on 12 June 2007, a list of forty five names and identification numbers of persons who had been fined by the police during the gay march. 27. As one of the suspects was believed to be a Steaua football club supporter, the investigators attended twenty-nine football matches between 16 September 2007 and 13 December 2009 in an attempt to identify him. On 12 February, 14 May, 4 August and 7 December 2010 and 10 March 2011 the investigators tried to identify the suspects at metro stations. On eight occasions between 12 June 2007 and 6 July 2011, the investigators successfully asked the prosecutor to extend the deadline for completing the investigation. 28. On 10 June 2011 the police stated their view that the investigation should come to an end and asked the prosecutor’s office not to institute criminal proceedings in the case. The police gave the following explanation for their request: “... the investigation was rendered difficult by the fact that the file arrived at the Metro Police Station ... almost one year after the incidents, and the police agents ... who had been in charge of the case until September 2006 could not continue the investigation as the Intelligence Service had refused to cooperate and allow their agent ‒ who was the only identified eye-witness to the events ‒ to be interviewed; it is to be noted that the police lost their motivation to use the information for the purposes of finding the truth in this case, of identifying and bringing to justice those responsible.