CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 avril 2016

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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.   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). 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. 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. 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 Prosecutor ‑ in ‑ Chief 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. II.     RELEVANT LAW AND PRACTICE A.     Domestic law and practice 36.     According to Article 250 of the Code of Criminal Procedure (CCP), an accused person may not acquaint him or herself with the prosecution file until the end of the criminal prosecution. It follows from the provisions regulating criminal investigation and prosecution that before that date, the content of the criminal file is not public (see Căşuneanu v. Romania , no.   22018/10, §   38, 16 April 2013). 37.     The relevant Article of the CCP read as follows: Article 173 “The counsel for the victim, the civil party and the party with civil liability has the right to formulate requests and adduce written statements. Counsel has the right to attend when the following investigative acts are taking place: hearing evidence from the party he represents, on-site investigations, searches, post-mortems, extensions of pre-trial detention; when other investigative acts are taking place, he can attend if the investigative body allows.” 38.     The new Code of Criminal Procedure (NCCP), applicable since February 2014, regulates explicitly the right of the victim or his or her counsel to have access to the prosecution file and to be present when any procedural act (with few exceptions) takes place (Articles 81, 93 and 94 of the NCCP). 39.     The relevant provisions of the Criminal Code, applicable at the time of the incident, prohibiting violence in various forms, depending on the gravity of the injuries inflicted on the victims may be found in Ciorcan and Others v. Romania (nos. 29414/09 and 44841/09, § 73, 27 January 2015). In addition, Article 323 prohibited association with the aim of committing crimes in the following terms: Article 323 “(1)     An act of association, or initiating association for the purpose of committing crimes (...), and joining and offering support of any kind to such an association, shall be punishable by three to fifteen years’ imprisonment; the punishment shall not be harsher than that provided by law for the crime for the purposes of which the association was constituted. (2)     If an act of association is followed by the commission of a crime, the punishment shall consist of the sentence for that crime combined with the sentence provided in paragraph (1).” 40.     Since 11 August 2006, Article 317 of the Criminal Code prohibits incitement to hate crimes in the following terms: Article 317 Incitement to discrimination “Incitement to hatred on grounds of race, nationality, ethnicity, language, religion, gender, sexual orientation, opinion, political opinion, convictions, wealth, social origin, age, disability, illness, or HIV infection/AIDS is punishable by imprisonment for 6 months to 3 years or by a fine.” Prior to that date, and at the time of the incident, sexual orientation was not included among the proscribed grounds for discrimination. Incitement to hate crimes is currently prohibited by Article 369 of the new Criminal Code. 41.     Since October 2006, Article 247 of the Criminal Code, which concerns abuse in the exercise of authority against the rights of the person, mentions sexual orientation as a proscribed basis for the denial of services; the crime is punishable by imprisonment of between 6 months and 5 years. This was not mentioned in the previous wording of that Article. Article 297 of the new Criminal Code also imposes sanctions for abuses in the exercise of authority such as “the deed of the civil servant who, during the exercise of work-related tasks, limits a person’s exercise of a right or creates a situation of inferiority on grounds of ... gender [or] sexual orientation ..., which is punishable with imprisonment of between two and seven years, and prohibition of occupying a public position”. In addition, the new Code maintained in Article 77 the aggravating circumstance regulated in Article   75 of the old Code, in cases of deeds perpetrated with discriminatory intent, including criminal motivation based on sexual orientation. 42.     The Anti-discrimination Act (Government Ordinance no. 137/2000 on combating and punishing all forms of discrimination) reinforces the right of any individual to receive equal treatment before courts and other judicial organs and to benefit without discrimination from the protection of the State against violence or ill-treatment perpetrated by another individual or group of persons (Article   1   §   2 (b)). Article 2 § 7 describes victimisation as “any adverse treatment ensuing from a complaint or a legal action brought concerning a breach of the principle of equal treatment and non-discrimination”. Victimisation constitutes a misdemeanour ( contravenţie ), unless classified as an offence by the criminal law. The denial of public services – administrative or judicial – on grounds of discrimination constitutes a misdemeanour (Article   10 (a)), unless classified as an offence by the criminal law. 43.     Any individual who considers himself a victim of discrimination can lodge a complaint either with the National Council against Discrimination ( Consiliul Naţional pentru Combaterea Discriminării, C.N.C.D.) – within one year of the date when the alleged act occurred – or directly with the civil courts – within three years of the same date (Articles 20 and 27 respectively). The Ordinance applies to private individuals, companies and public institutions alike (Article 3). 44.     On 28 March 2012 the C.N.C.D. adopted Decision no. 108. The complaint in question had been brought by a private individual who had claimed that the police had refused to assist him or to hear his complaint against individuals who ill ‑ treated him on the grounds of his sexual orientation. The C.N.C.D. considered that it lacked the power to examine acts falling outside the scope of a misdemeanour ( contravenţie ) and to examine acts of police departments which were to be dealt with internally. It also reiterated that its powers were to establish the existence of discrimination and, possibly, to impose administrative sanctions ( sancţiuni contravenţionale ). B.     Relevant Council of Europe texts 45.     On 31 March 2010 the Committee of Ministers of the Council of Europe adopted the text of Recommendation CM/Rec(2010)5 to member States on measures to combat discrimination on grounds of sexual orientation or gender identity. 46.     The Commissioner for Human Rights of the Council of Europe conducted a study examining discrimination on grounds of sexual orientation and gender identity in Europe (a second edition of the study was published in September 2011). The study makes a general assessment of public opinion and of the protection afforded by States to homosexual persons across Europe. It contains relevant data on discriminatory attitudes and practices and on the legislative measures in place in European States, including Romania, in the matter. Relevant excerpts relating to the situation in Romania read as follows (footnotes omitted): European studies “Regarding opinions on the question “How would you personally feel about having a homosexual as a neighbour?” a 2008 report concluded that for the European Union member states “the average European is largely comfortable with the idea of having a homosexual person as a neighbour”. However, there are large differences between countries, with respondents in Sweden (9.5), the Netherlands and Denmark (9.3) being the most comfortable with this idea (see Map 1.1) on a 10-point “comfort scale”. Respondents in Romania (4.8), Bulgaria (5.3), Latvia (5.5) and Lithuania (6.1) are less comfortable. Other studies measuring attitudes and “social distance” found similar patterns. As for the question whether a homosexual person should hold the highest political office in the country, it was found in 2008 that people in Sweden, Denmark and the Netherlands were the most positive while people in Bulgaria, Cyprus and Romania were the most negative. The question was repeated in 2009 and the most negative answers were found in Bulgaria, Romania and Turkey.” Protection: violence and asylum “There is a growing amount of evidence demonstrating that a significant number of LGBTI persons in Council of Europe member states experience physical violence, harassment or assault because of their real or perceived sexual orientation and gender identity. Such violence may take different forms but is often driven by deep hatred, intolerance, disapproval or rejection of the sexual orientation or gender identity of the person. A commonly used term in this regard is “hate crime” or “hate-motivated violence”, which may be fuelled by speech and public expressions which spread, incite, promote or justify hatred, discrimination or hostility towards LGBT people. Such speech can be expressed by fellow citizens, but also by political and religious leaders or other opinion makers, whether circulated by the press or the Internet. Sometimes state actors are involved in violence or harassment against LGBT persons, and in some instances family members. ... The incitement of hatred, violence or discrimination on grounds of sexual orientation is considered as a criminal offence in only 18 member states (Andorra, Belgium, Croatia, Denmark, Estonia, France, Iceland, Ireland, Lithuania, Monaco, the Netherlands, Norway, Portugal, Romania, Slovenia, Spain, Sweden and the United Kingdom). Similarly, homophobic intent is accepted as an aggravating factor in common crimes in only 15 member states: Andorra, Belgium, Croatia, Denmark, France, Greece, Lithuania, the Netherlands, Norway, Portugal, Romania, Slovenia, Spain, Sweden and the United Kingdom.” A pilot project in nine European countries (Denmark, France, Germany, Ireland, Latvia, Portugal, Romania, Sweden and the United Kingdom) has been set up to focus on how the police handle hate crime cases. The project has developed a toolkit for handling hate crimes, including a database for reporting, a website with information about hate crime, training material for police and information material for LGBT people.” Participation: freedoms of assembly, expression and association “Since 2004 in at least 12 member states there have been cases of bans and/or administrative impediments on Pride events or other large public cultural LGBT events (Bulgaria, Estonia, Latvia, Lithuania, Moldova, Poland, Romania, the Russian Federation, Serbia, Turkey, Ukraine and “the former Yugoslav Republic of Macedonia”). ... Bans of Pride parades and other LGBT cultural events have since 2004 occurred in a handful of member states, notably the Pride parades in Latvia (in 2005 and 2006), Lithuania (in 2007 and 2008), in Romania (in 2005) and in “the former Yugoslav Republic of Macedonia” (in 2007, when an LGBT event in Skopje was denied authorisation). ... Counter-demonstrations as a reaction to Pride parades are not uncommon in member states and may be held by religious communities, nationalist or extreme right-wing groups. While most of these counter-demonstrations are carried out within the limits of the right to freedom of assembly, others take the form of organised attacks on participants in Pride parades, resulting in clashes and incidents. This has been the case in at least 15 member states since 2004 (Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Estonia, Hungary, Italy, Latvia, Moldova, Poland, Romania, the Russian Federation, Serbia, Sweden and Ukraine). Sometimes counter-reactions have had a wider reach and have been promoted and sustained by political or religious figures. European institutions, including the Commissioner for Human Rights, have expressed concern for violence and limitations on the right to freedom of assembly of LGBT persons. Violent clashes seriously hamper the possibility for LGBT persons to peacefully demonstrate for their human rights and contribute to fostering hostility and prejudices. The OSCE has developed a set of guidelines to provide guidance to states on how to respect the freedom of assembly. The guidelines contain a principle of non ‑ discrimination on the part of the authorities in guaranteeing the exercise of the right to freedom of assembly, including on the ground of sexual orientation, while they do not make mention of gender identity.” THE LAW I.     ALLEGED VIOLATION OF ARTICLES 3, 8 AND 14 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 12 TO THE CONVENTION 47.     The applicants complained under Articles 3, 6, 8 and 14 of the Convention and under Article 1 of Protocol No. 12 to the Convention about the failure to investigate adequately their criminal complaints concerning acts of violence motivated by hatred against homosexuals, and more generally about the lack of adequate legislative and other measures to combat hate crimes directed against the LGBTI minority. They further complained that, when conducting the investigation, the authorities did not take into account the fact that the offences against them were motivated by their sexual orientation. They therefore failed to meet the procedural obligations enshrined in the above Articles. 48.     The Court is the master of the characterisation to be given in law to the facts of the case and does not consider itself bound by the characterisation given by an applicant or a government (see, among the most recent authorities, Gherghina v. Romania (dec.) [GC], no. 42219/07, §   59, 18 September 2015). Therefore, when communicating these complaints, it considered that they would be more appropriately examined under Articles 3, 8 and 14 of the Convention and 1 of Protocol No. 12 to the Convention (which Protocol became applicable as regards Romania on 1   November 2006), which read as follows: Article 3 (prohibition of torture) “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 (right to respect for private and family life) “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 (prohibition of discrimination) “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 12 (General prohibition of discrimination) “1.     The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2.     No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” A.     Admissibility 1.     Preliminary objections 49.     The Government raised two preliminary objections concerning the exhaustion of domestic remedies and the six-month time-limit for lodging the application with the Court. (a)     Non-exhaustion of domestic remedies (i)     The parties’ submissions (α)     The Government 50.     The Government argued that the applicants had failed to exhaust the domestic remedies for the alleged discrimination as regards both the motives behind the incident and the allegedly racist attitudes of the investigators. They enumerated all the domestic laws dealing with discrimination and argued that the applicants should have lodged a complaint with the C.N.C.D. A favourable decision from the Council would have allowed them to seek damages before the domestic courts. 51.     Moreover, they argued that the applicants could have relied on Decree no. 31/1954 taken in conjunction with Articles 998-999 of the former Civil Code in force at the relevant date to seek redress for an alleged infringement of their non-pecuniary rights. They made reference to the domestic case-law presented in Man and Others v. Romania , no.   39273/07 (case communicated on 4 October 2012 to the respondent Government). 52.     They further contended that the applicants should have lodged criminal complaints against the investigators both for protracting the investigations and for the alleged discrimination against the applicants. (β)     The applicants 53.     The applicants pointed out that the Government had done no more than refer to the legislation in place rather than providing any relevant case ‑ law citations to support the alleged effectiveness of the remedies invoked. 54.     They further contended that the objection raised pertained exclusively to the complaint of discrimination and not to the case as a whole. 55.     They considered that they had done everything that could reasonably have been expected of them to exhaust the domestic remedies: they had raised all their complaints at the domestic level and pursued the chosen avenues until their conclusion. They contended that as victims of hate crimes, they have to rely exclusively on a criminal investigation, the authorities being the only ones having the means to hold the culprits accountable for their deeds. For this reason, the only effective domestic remedy is a criminal investigation carried out in a timely manner and capable of identifying and holding accountable the culprits. None of the remedies indicated by the Government was therefore effective. Moreover, in so far as the alleged discrimination in the investigation was concerned, those remedies could only be used at the end of the investigation itself, when it would be known to the applicants who was responsible for each investigative measure. They reiterated that access to the criminal file was denied them for six years (until 2012). To start fresh proceedings before the civil courts or the C.N.C.D. at that point would have been ineffective because of the long period of time that had elapsed from the date of the events. 56.     Lastly, they point out that the C.N.C.D. would not be able to deal with criminal offences such as the ones perpetrated in the instant case, as the police and prosecutor’s office are the only authorities with power in that sphere. The Council has also declared any alleged discrimination perpetrated within the police to be outside the scope of its activity. They made reference to the C.N.C.D.’s decision no. 108 of 28 March 2012 (paragraph 44 above). (ii)     The Court’s assessment (α)     General principles 57.     The Court reiterates that it is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of the Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected at a domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has a close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports 1996 ‑ IV; Gherghina , cited above, § 83; Mocanu and Others v.   Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 220, ECHR   2014 (extracts); and Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 other cases, § 69, 25   March 2014). 58.     The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of the remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others , cited above, § 66; Gherghina (dec.) [GC] , cited above, § 85; and Vučković and Others , cited above, § 71). 59.     However, the Court has also frequently underlined the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (see Akdivar and Others , cited above, § 69; Kurić and Others v.   Slovenia [GC], no. 26828/06, § 286, ECHR 2012 (extracts); Vučković and Others , cited above, § 76; and Gherghina (dec.) [GC], cited above, § 87). 60.     As regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see McFarlane v. Ireland [GC], no. 31333/06, §§   117 and 120, 10 September 2010; Vučković and Others , cited above, §   77; and Gherghina(dec.) [GC], cited above, § 88). (β)     Application of these principles to the case 61.     Turning to the facts of the present case, the Court notes that whilst the Government’s objection refers primarily to the complaint of discrimination, it also touches upon the allegations of lack of an effective investigation. The Court will examine the arguments accordingly. It notes that the applicants lodged a criminal complaint with the domestic courts in which they raised both the issue of ill ‑ treatment and the issue of discrimination. When properly conducted, the criminal investigation constitutes an effective domestic remedy for these complaints: violence such as that suffered by the applicants is punishable by the domestic criminal law, the legal classification thereof being dependant on the concrete circumstances of the case and the severity of the injuries inflicted on the victims (see paragraph 39 above). All elements of the file, including allegations of racist motives for the crimes, should also be taken into account by the investigators. The applicants had no reason to doubt the effectiveness of this remedy. 62.     Furthermore, the C.N.C.D. considers that it lacks jurisdiction to deal with both aspects of the applicants’ complaint of discrimination: the first – violence – as it is a criminal offence and the second, police attitude – which should be dealt with internally by the police hierarchy (see paragraph 44 above). The applicant could only appeal to the C.N.C.D. once the identity of the perpetrators was established and they therefore had to wait for the criminal proceedings to end before they could start any proceedings before the Council. As the investigation ended without any establishment of responsibility concerning both the initial attack and the manner in which the investigation had been conducted, in practice, this remedy was not available to the applicants. 63.     In the Court’s view, failure to establish the identity of the attackers renders any civil law remedy futile in so far as the allegations of discrimination are concerned. As for the remaining remedies, the Government failed to demonstrate their effectiveness in the case. 64.     For these reasons, the Court is satisfied that the applicants availed themselves of the remedies which were available and sufficient for the purpose of this application. It therefore dismisses the Government’s preliminary objection. (b)     Six month rule (i)     The parties’ submissions (α)     The Government 65.     The Government argued that the applicants had waited too long to bring their application to the Court, and in particular that they must have been aware of the ineffectiveness of the criminal investigation long before they petitioned the public prosecutor on 19 March 2012. It was due to their own negligence that they had failed to act more expeditiously (they refer to Bayram and Yıldırım v.   Turkey (dec.), no. 38587/97, ECHR 2002 ‑ III). More precisely, the alleged failure of the judicial authorities to act must have become gradually apparent by 2007, when the applicants had been informed that their case file had been logged by the Metro Police Station. They had failed to take any steps after that date to find out about the development of the investigation, even though it would have been in their interest to seek information, in particular since their initial complaint had been filed against unidentified persons. 66.     The onus had therefore been on the applicants to ensure that the claims were raised before both the relevant domestic authorities and the Court with sufficient expedition to ensure that they could be properly and fairly resolved. However, the applicants had waited until 9 August 2011 when, without referring to any new developments, they had merely contacted the authorities, with the effect of prodding them into some belated activity after a lull of almost four years. (β)     The Applicants 67.     The applicants contested the Government’s position and their allegations of lack of interest in the domestic proceedings. They reiterated that they had lodged the criminal complaint on the same day as they had been subjected to the ill ‑ treatment, had produced most of the evidence in the case, and had identified two individuals in the group of attackers, one of them also by name (paragraph 19 above). The authorities had opened the investigations and had kept the file open all this time; the last investigative action had been recorded on 10   March 2011. 68.     The applicants argued that they had had no reason to doubt the effectiveness of the remedy. They pointed out that criminal investigations in Romania took a long time as a general rule. Furthermore, there had been no regular communication between the authorities and the victims: the latter had given testimony at the beginning of the investigation and had then been informed at the end about the outcome, but had had no access to the prosecution file until the end of the proceedings. They reiterated that they did not get access to the file until 9   May 2012. (ii)     The Court’s assessment (α)     General principles 69.     The Court reiterates that, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of cognisance of that act or its effect on or prejudice to the applicant (see, among other authorities, Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, §   259, ECHR 2014 (extracts)). Article 35 § 1 cannot be interpreted in a manner which would require an applicant to bring his complaint before the Court before his position in connection with the matter has been finally settled at the domestic level, otherwise the principle of subsidiarity would be breached. Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period as the date when the applicant first became or ought to have become aware of those circumstances (see idem, §   260 and Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, §   157, ECHR 2009). 70.     In cases of a “continuing situation”, the period starts to run afresh each day and it is in general only when that situation ends that the six ‑ month period actually starts to run. However, not all continuing situations are the same. Where time is of the essence in resolving the issues in a case, the burden is on the applicant to ensure that his or her claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (see Varnava and Others , cited above, § 160). This is particularly true with respect to complaints relating to any obligation under the Convention to investigate certain events. As the passage of time leads to the deterioration of evidence, time has an effect not only on the fulfilment of the State’s obligation to investigate but also on the meaningfulness and effectiveness of the Court’s own examination of the case. An applicant has to become active once it is clear that no effective investigation will be provided, in other words once it becomes apparent that the respondent State will not fulfil its obligation under the Convention (see Mocanu and Others , cited above, §§   261-262 with further references). 71.     The Court has already held that, in cases concerning an investigation into ill-treatment, as in those concerning an investigation into the suspicious death of a relative, applicants are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Bayram and Yıldırım v.   Turkey (dec.), no. 38587/97, ECHR 2002 ‑ III). 72.     In line with the principle of subsidiarity, it is best for the facts of cases to be investigated and issues to be resolved, in so far as possible, at domestic level. It is in the interests of the applicant, and the efficacy of the Convention system, that the domestic authorities, who are best placed to do so, act to put right any alleged breaches of the Convention (see Varnava and Others , cited above, § 164). 73.     It follows that the obligation of diligence incumbent on an applicant contains two distinct but closely linked aspects: on the one hand, the applicant must contact the domestic authorities promptly concerning progress in the investigation – which implies the need to apply to them with diligence, since any delay risks compromising the effectiveness of the investigation – and, on the other, he must lodge the application promptly with the Court as soon as he becomes aware or should have become aware that the investigation is not effective (see Mocanu and Others , cited above, § 264 with further references). (β)     Application of those principles to the case 74.     Turning to the facts of the present case, the Court notes that the applicants acted promptly in informing the authorities about the alleged crimes, lodging their criminal complaint within hours of the incident (see paragraph 16 above and, in contrast, Vartic v. Romania (dec.), no. 27631/12, §   48, 52 and 53 6 May 2014, and Manukyan v. Georgia (dec.), no.   53073/07, § 33, 9   October 2012). In the following days, they presented to the authorities all the evidential mat