CASE OF M.C. AND A.C. v. ROMANIA
Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation;Positive obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
6. The applicants were born in 1978 and 1986 respectively and live in Bucharest and Curtea de Argeş respectively. 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. 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. 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. 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. 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. In addition, to a certain extent the victims lost their interest in how their complaint was being dealt with (they did not ... adduce the medical certificates ... which had been obtained at the request of the police ... on 27 October 2009 when it was noted that none of the victims had needed more than two days of medical care). It is observed that all the evidence-gathering methods for this type of crime have been exhausted and, given the lapse of time from the date when the complaints were lodged, the validity and relevance of the evidence gathered ... [have decreased], leaving the investigation into the identity of the culprits without an outcome. At the same time, it is observed that ... the criminal acts had become time-barred, removing criminal responsibility from the culprits. 29. On 9 August 2011, in response to a request from the applicants for information, the Metro Police informed them that their intention was to not institute a criminal prosecution (neînceperea urmăririi penale) as the alleged crimes had become statute-barred (s-a împlinit prescripţia specială). The police explained that the investigation had been rendered more difficult by the fact that the file had not arrived at the Metro Police office until a year after the events. Moreover, all the actions undertaken by police in order to identify the alleged culprits had failed. 30. On 4 October 2011 the prosecutor’s office attached to the Bucharest District Court of the Fourth Precinct endorsed the police proposal and decided to terminate the investigation. The decision was sent to the first applicant’s home on 27 February 2012. 31. On 19 March 2012 the applicants lodged a complaint with the ProsecutorinChief against the decision of 4 October 2011. They argued that the prosecutor should have investigated the more serious crime of organising a criminal group (asocierea pentru savârşirea de infracţiuni), which had not yet become time-barred. They also complained that the investigators had failed to pursue their allegation that the attack had been motivated by their sexual orientation. The prosecutor-in-chief dismissed their objections on 18 June 2012. 32. The applicants reiterated their objections against both the decisions delivered by the prosecutors in two separate complaints lodged with the Bucharest District Court. 33. On 9 August 2012 the District Court dismissed the complaint lodged by the applicants against the prosecutor’s decision of 4 October 2011. The court made the following observation: “It is true that the authorities were apparently not sufficiently diligent in carrying out within a reasonable time an effective investigation capable of identifying and punishing those responsible for the criminal acts (the long periods of police inactivity, the transfer of files, the lack of cooperation from some authorities are all duly noted). On the other hand, this situation – although not imputable to the [applicants] – cannot prevent the application of the statute of limitation of criminal responsibility.” 34. On 12 November 2012 the District Court dismissed the complaint lodged against the prosecutor’s decision of 18 June 2012 as a mere reiteration of that already dealt with by the court in its decision of 9 August 2012. 35. Throughout the proceedings the applicants repeatedly sought access to the prosecution file. It was partially granted on 9 May 2012 and the applicants gained full access to the file once their objections had been lodged with the courts.