CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 1 juin 2021

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display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top }     FOURTH SECTION CASE OF ASSOCIATION ACCEPT AND OTHERS v. ROMANIA (Application no. 19237/16)       JUDGMENT   Art 14 (+ Art 8 and Art 11) • Discrimination on the basis of sexual orientation • State’s failure to ensure LGBT event proceeded peacefully, without verbal abuse, and carry out effective investigation into homophobic motives of counter-demonstrators   STRASBOURG 1 June 2021   FINAL   01/09/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Association ACCEPT and Others v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Yonko Grozev, President,   Faris Vehabović,   Iulia Antoanella Motoc,   Armen Harutyunyan   Gabriele Kucsko-Stadlmayer,   Pere Pastor Vilanova,   Ana Maria Guerra Martins, judges, and Andrea Tamietti, Section Registrar, Having regard to: the application (no.   19237/16) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a non-profit association under Romanian law (“the applicant association”) and five Romanian nationals (“the individual applicants”), on 2 April 2016; the decision to give notice of the application to the Romanian Government (“the Government”); the observations submitted by the respondent Government and the observations in reply submitted by the applicants; the comments submitted by Ordo Iuris, who were granted leave to intervene by the President of the Section; Having deliberated in private on 20 April 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     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. It also concerns the consequences of these incidents on the applicants’ right to freedom of peaceful assembly. The applicants relied on Articles 3, 8, 11, 13 and 14 of the Convention as well as on Article 1 of Protocol No. 12 to the Convention. THE FACTS 2.     The applicants’ names, years of birth or establishment and place of residence are listed in the Appendix below. They were represented by Ms   R.I. Ionescu, a lawyer practising in Bucharest. 3.     The Government were represented by their Agent, most recently Ms   O.F.   Ezer of the Ministry of Foreign Affairs. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. The incident of 20 February 2013 5.     In February 2013, the applicant association, ACCEPT – an organisation promoting the interests of lesbian, gay, bisexual and transgender people (LGBT) in Romania – organised a series of cultural events to celebrate LGBT History Month. The programme included the screening, on 20   February 2013, at 6 p.m., of a movie portraying a same-sex family, in a cinema situated in the National Museum for the Romanian Peasant (“the Museum”) in Bucharest. The screening was meant to be followed by a discussion among the screening attendees, inspired by the movie, about the rights of same-sex families. 6 .     On 20 February 2013 the applicant association became aware that an “online mobilisation” was taking place on social media platforms calling for a counter-demonstration later in the evening, during the screening at the Museum. The applicant association’s representative phoned the police and subsequently, upon advice from the police, sent a written request for protection. 7 .     Ten police officers from Bucharest police station no.   2, together with the head of that station, arrived on the premises to provide protection. They were later joined by a team of seven gendarmes who had been alerted by the director of the Museum via the national emergency number (112) and arrived as reinforcements in order to prevent any escalation. The police officers and gendarmes entered the building in which the cinema was situated, but remained in the corridor outside the screening room. 8.     About twenty people attended the public screening, including the individual applicants (the second, third, fourth, fifth and sixth applicants). Entrance was free, but most of the participants had been invited by the applicant association to attend. Fifty more people entered the screen room, some of them carrying flagpoles. 9 .     According to the applicants, the newcomers disturbed the screening by shouting remarks such as “ death to homosexuals ” , “ faggots ” or “ you filth ” , and insulting and threatening attendees of the screening, including the individual applicants. Some of the intruders displayed fascist and xenophobic signs and brandished the flag of Everything for the Country ( Totul pentru ţară ), a Romanian far-right party. In 2015 that party was dissolved by court order. The intruders seemed to be associated with a far ‑ right movement, the New Right ( Noua Dreaptǎ ), which is active in political life and is openly opposed, among other things, to same-sex marriage and same-sex adoptions (for further details on these movements, see paragraph 43 below). 10 .     The organisers alerted the police officers who had been stationed outside the screening room. The latter entered the room, confiscated some flags from the intruders and then left the room, despite the organisers’ request to remain. 11 .     The intruders opposed the screening as they considered that the movie damaged national dignity because of its homosexual theme, a feeling that had been aggravated by the choice of venue – a place of history and tradition. They blocked the projector, so the screening could not continue. The organisers halted the screening and switched the lights on. 12.     As people started leaving the room, the police officers stationed in the corridor checked the identity papers of twenty-nine individuals, the majority of them from the group opposing the screening. By 7.50   p.m. everyone had left the venue. 13 .     The report concerning the incident of 20 February 2013, written by the head of the gendarme team, reads as follows in so far as relevant: “At about 6.10 p.m. I was called by the [Bucharest Directorate General of Gendarmerie] to go to [the Museum] – where a movie was being screened by the association ACCEPT – because some members of the ‘New Right’ had entered the premises with a view to blocking the screening through any means. We arrived at 6.13 p.m. and I talked with [G.P.], the head of the police station, which had deployed [to the Museum] two uniformed police officers and six-seven [police officers] wearing civilian clothes. When we arrived, the screening had already started. In the room were present approximately sixty-seventy people (forty-fifty people ... from the ‘New Right’ and twenty people from the ACCEPT association). After a few minutes, those from the ‘New Right’ started booing, waving the national flag, and singing the national anthem, blocking the screening (6.18 p.m.). We monitored the situation from the corridor of the cinema, lending our support to the police officers, in order to avoid any possible altercations. At about 7.10 p.m. the people in the cinema room started leaving the premises. The police officers decided to verify the identity of the people present and asked us to help. [The identities of] twelve people were verified by the gendarmes and of eleven more by the police. At about 7.35 p.m., [G.P.] decided to allow to leave those people who refused to present their identity papers.” 14 .     The gendarmes’ report also listed the names and personal identification numbers of the twelve individuals identified by the gendarmes. In a separate report dated 24 February 2013 addressed to the General Inspectorate of the Romanian Gendarmerie, the head of the gendarme team present during the incident wrote a detailed depiction of several of the individuals identified and noted that they had belonged to the New Right and had been opposed – because of their religious and “moral” beliefs – to the event organised in the Museum. 15.     On 21 February 2013 the police drafted a report on the incident, stating, in so far as relevant, as follows: “Entrance to the event was free, and present in the auditorium were both representatives of the ACCEPT association and sympathisers of the ‘New Right’ movement, who were not exhibiting any insignia of that organisation. In the auditorium were thus present about sixty-seventy people, of whom forty-fifty belonged to the New Right movement. After the movie started, some participants started causing a commotion ... Eventually the screening was stopped, the light was switched on and the majority of those present expressed their indignation that the film was being screened in [the Museum]. They considered that the film was inappropriate because it had homosexual undertones and thus harmed the national honour. They expressed their indignation that the event had been organised in [the Museum] and not in a different place with less history and tradition. The participants engaged in discussions about sexual orientation, and religious and nationalist issues, and the sympathisers of the ‘New Right’ sang the national anthem and patriotic and religious songs. No acts of violence occurred during the combative discussions between the two groups. In order to prevent negative incidents between the participants, the head of police station no. 2, and ten police officers came to the location, as well as a team of seven gendarmes, who [together] took preventive measures. The event ended after approximately sixty minutes, and it was not necessary to intervene by force to evict the participants. At the museum exit, the identity papers of twenty-nine individuals were checked, most of them showing dissatisfaction at being checked in an operation that they considered to be illegal.” 16 .     The screening was rescheduled and took place in the same location on 10 March 2013 without incident. Criminal complaint 17 .     On 5 March 2013 the applicant association lodged a criminal complaint about the incident with Bucharest police section no. 2, alleging incitement to discrimination, abuse of office by the restriction of rights, and the displaying of fascist, racist or xenophobic symbols in public. The complaint relied on Articles 247   and 317 of the Criminal Code (“the CC”), as in force at that time (see paragraph 36 below), was directed against the police officers and private individuals, and was lodged on behalf of ten individuals (including the individual applicants) who had participated in the screening of 20 February 2013. Those individuals complained that unidentified individuals had interrupted the screening, uttered threats, displayed fascist symbols, and filmed, photographed and videotaped the participants without their permission. They furthermore complained that the authorities had failed to take adequate measures to prevent and stop the behaviour of the violent group and to allow the victims’ peaceful assembly to continue. The applicant association argued that those acts had been motivated by hatred towards homosexuals. The applicant association appended information about the alleged perpetrators – details which, it believed, would contribute to the identification of the perpetrators and the roles that they had played in the incident. The applicant association also attached to the complaint a video of the incident, which had been posted on the Internet. 18.     On 17 March 2013 the prosecutor’s office attached to the Bucharest District Court determined that it had no jurisdiction to deal with the complaint and forwarded it to the prosecutor’s office attached to the Bucharest County Court; on 27   February 2014 the prosecutor’s office attached to the Bucharest County Court – noting that the case also concerned military personnel (that is to say the gendarmes) – forwarded the complaint to the military prosecutor’s office attached to the Bucharest County Court. 19 .     On 31 March 2014 the military prosecutor’s office opened a criminal investigation in respect of the case. 20 .     On 13 May 2014 D.P.P., a member of the applicant association, was interviewed by the military prosecutor. She stated that on 20 February 2013, about two hours before the start of the screening, she had received an email alerting her that a certain I.C. had posted on his social media page information to the effect that a group of individuals opposing the event would attend the screening in order to voice their opposition. She had called and then written to the police to request protection during the event. She furthermore declared that after the event, when the ACCEPT members had been leaving the premise, the intruders had continued to shout abuse at them. 21 .     G.P., the head of police station no. 2 (see paragraph 13 above), was heard on 18 June 2014. He reiterated that the intruders had made allegations that the screening was hurting the national honour and went against history and tradition. He declared that they may well have been supporters of extreme-right organisations but that they had not worn any distinct insignia of such organisations. 22 .     In a decision of 24 June 2014 the military prosecutor’s office found that the gendarmes had been unable to create an action plan for dealing with the incident of 20 February 2013 because the applicant association had failed to seek the necessary pre-authorisation for that event. The prosecutor found that the gendarmes had complied with their obligations; the prosecutor then concluded the investigation in that respect. The prosecutor sent the case file to the prosecutor’s office attached to the Bucharest District Court in order that the latter might continue the investigation concerning the police officers involved. No mention was made in that decision of the individuals who had interrupted the event. 23.     On 4 September 2014 the prosecutor’s office attached to the Bucharest District Court forwarded the case file to the prosecutor’s office attached to the Bucharest Court of Appeal. It relied on a ruling of 18   June 2014 whereby the prosecutor-in-chief of the prosecutor’s office attached to the Bucharest Court of Appeal had decided that all investigations concerning heads of police stations from the jurisdiction of that Court of Appeal would be carried out by that prosecutor’s office. Consequently, on 15   September 2014 the prosecutor’s office attached to the Bucharest Court of Appeal took over the investigation in respect of the case. 24 .     In a decision of 14 October 2014 the prosecutor’s office attached to the Bucharest Court of Appeal ended the investigation on the grounds that the acts complained of did not constitute criminal offences. The description of the incident, which was depicted as “an exchange of views” between the participants, was similar to that contained in the police report (see paragraph   15 above). 25 .     On 10 November 2014 the applicants lodged a hierarchical complaint against the prosecutor’s decision; on 15 December 2014 that complaint was dismissed by the prosecutor-in-chief of the prosecutor’s office attached to the Bucharest Court of Appeal. The applicants were notified of that decision on 29 December 2014. 26 .     Meanwhile, on 22 December 2014 the applicant association lodged a complaint with the preliminary chamber of the Bucharest District Court (“the Bucharest District Court”) against the prosecutor’s decision of 14   October 2014 (see paragraph 24 above), both on its own behalf and on behalf of the victims (including the individual applicants). Subsequently, the applicants extended the complaint to encompass the decision of 15   December 2014 (see paragraph 25 above). The applicants reiterated their version of the sequence of events, and reaffirmed that the police officers present on the premises had refused to intervene to de-escalate the situation. They argued that the investigators had disregarded evidence that would have allowed them to pick out the perpetrators from the intruders and the threat that they had posed to the applicants. Moreover, they argued that the prosecutor had completely omitted to investigate the part of the complaint concerning the intruders, and they gave the names of ten individuals whom they had been able to identify from the group of intruders. They furthermore contended that the intruders had worn fascist and xenophobic signs (not necessarily only symbols of the New Right organisation). Lastly, the applicants opposed the prosecutor’s description of the incident as an “exchange of views”. 27 .     At the same time, the applicant association lodged a complaint, on its own behalf and on behalf of the individuals concerned, with the prosecutor’s office attached to the High Court of Cassation and Justice, against the decision of 15   December 2014. It argued that its criminal complaint (see paragraph 17 above) had been insufficiently investigated. In addition, it provided links to several videos published on the Internet about the incident. 28 .     On 5 February 2015 the prosecutor’s office attached to the High Court of Cassation and Justice found that the investigation had not been sufficient in so far as it concerned the allegations that the intruders had worn fascist symbols. He also deemed that the investigators should have interviewed the individuals who had participated in the incident. In its description of the incident, the prosecutor’s office referred to the applicants as being “followers of same-sex relations” ( adepţii relaţiilor între persoane de acelaşi sex ). 29 .     Meanwhile, in the course of its examination of the complaint lodged by the applicants on 22   December 2014 (see paragraph 26 above), the Bucharest District Court became acquainted with the prosecutor’s decision of 5 February 2015 and asked the applicant association if it intended to pursue its complaint concerning the incident of 20 February 2013. The applicant association requested that the examination continue and reiterated that two years had passed since the incident but that nothing had been done in order to uncover the truth – the only step taken having been to transfer the case from one prosecutor’s office to another. On 2 March 2015 the Bucharest District Court dismissed the applicants’ complaint. 30 .     On 12 June 2017 the prosecutor’s office attached to the Bucharest Court of Appeal opened an investigation into the allegations of public utilisation of fascist, racist and xenophobic symbols. Four individuals were interviewed as witnesses, at least one of them from among the individuals identified in the gendarmerie report of 24 February 2013 (see paragraph   14 above). They all stated that they had witnessed exchanges between the two groups, but had not seen any fascist symbol or gesture. Some of them declared that they had heard about the screening from social media and had opposed it because entrance to the screening had been free to anyone who wished to view it – even though the film had – according to them – been rated as suitable only for adult viewing. One of the witnesses mentioned that he had noticed in the cinema auditorium a flag bearing the words “Everything for the country”. 31 .     On 19 June 2017 the police viewed the footage of the incident and described its contents in a police report. In that report it was mentioned that a flag with the words “Everything for the country” written on it could be seen in the footage and that someone could be heard shouting “Death to the homosexuals”. 32 .     On 11 August 2017 the prosecutor decided to discontinue the investigation on the grounds that the evidence in the file did not prove beyond any reasonable doubt that the alleged criminal acts had in fact been committed. The prosecutor considered that the evidence in the file did not corroborate the statements made by the members of the applicant association. 33 .     On 21 September 2017 the prosecutor-in-chief from the prosecutor’s office attached to the Bucharest Court of Appeal dismissed the complaint lodged by the applicant against the decision of 11 August 2017. 34 .     The applicants lodged a complaint with the Bucharest Court of Appeal against the prosecutors’ decisions. They argued that sufficient evidence showed that fascist symbols had been displayed – including the slogan “Everything for the country”, which belonged to a political party that had been banned because of its fascist agenda. On 22   November 2017 the Bucharest Court of Appeal upheld with final effect the prosecutor’s decision of 11 August 2017 (see paragraph 32 above), on the grounds that there was no evidence to sustain beyond any reasonable doubt the assertion that fascist symbols had been displayed in public. RELEVANT LEGAL FRAMEWORK AND PRACTICE Relevant domestic law Law no. 60/1991 35 .     The relevant parts of Law no. 60/1991 on the organisation and conduct of public assemblies (“Law no. 60/1991”) read as follows. Article 2 “Public assemblies must be peaceful and civilised and [the organisers thereof] must ensure the protection of participants and of the environment ... [T]hey must not degenerate into turbulent actions capable of endangering the public peace, safety of people, their corporal integrity, life, or possessions, or public property ...” Article 3 “The following [types of] public assemblies need not be declared in advance: cultural/artistic, sporting, religious or commemorative gatherings [and] events connected with official visits, as well as those organised in front of, or inside, the headquarters of or buildings belonging to [public or private] legal entities. If the organisers of public assemblies not subject to prior declaration have information that those assemblies may cause disorder or lead to violent acts, they have the obligation to request in good time specialised support from the mayor’s office, the relevant gendarmerie and local police.” Article 5 “... (2)     It is forbidden to conduct simultaneously two or more separate public assemblies, in the same spot or on the same routes, irrespective of their characteristics.” Article 9 “Public hearings are forbidden if they pursue one of the following aims: (a)     the dissemination of fascist, communist, racist or chauvinist ideologies or ideologies of terrorist organisations using diversionary tactics, the defamation of the country or the nation, incitement to nationalist or religious hatred, [or] incitement to discrimination, public violence or obscene manifestations, contrary to public mores; ... (c)     the infringement of public peace, safety or morals [or] of the rights and freedoms of others, or the endangerment of the health of others.” Article 13 “Participants in public assemblies have the following obligations: a) to observe the recommendations made by the organisers of [those] public assemblies, or their representatives or the law-enforcement authorities; b) to refrain from actions likely to impede the normal conduct of public meetings   and from incitement to such – either orally, by means of leaflets or by other audio-visual means; c) not to introduce or to [allow], during [those] public meetings, objects such as those provided in article 12 § 1 (g) [alcoholic beverages] and (j) [weapons of any kind, explosive or incendiary material, irritants or paralysing substances, devices for delivering electric shocks, or other objects that could be used for violent actions or to disrupt the normal conduct of assemblies]; d) to leave immediately [those] public assemblies or the place in which they take place, when they are called upon to do so by the organisers, their representatives or the police; e) not to participate in public assemblies in a state of inebriation, [and] not to consume or distribute alcoholic beverages or drugs.” The Criminal Code (“the CC”) 36 .     The provisions of the CC, as in force until 1 February 2014, read as follows, in so far as relevant: Article 247 Abuse of office by restriction of rights “An act undertaken by a civil servant to restrict the use or exercise of a person’s rights or to [place] a person in a situation of inferiority, on the grounds of race, nationality, ethnicity, language, religion, gender, sexual orientation, opinion, political affiliation, beliefs, wealth, social origin, age, disability, chronic non-contagious disease or HIV/AIDS infection, is punishable by imprisonment for between six months and five years.” 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 between six months and three years or   by   a   fine.” Article 323 Association for the purposes of committing crimes “(1)     Acting as part of [a criminal] association (or forming such an 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 formed. (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).” 37 .     In the new CC, in force since 1   February   2014, the relevant provisions read as follows: Article 77 Aggravating circumstances “The following situations constitute aggravating circumstances: ... h) committing the crime [in question] for motives related to race, nationality, ethnicity, language, religion, gender, sexual orientation, opinion or political affiliation, wealth, social origin, age, disability, chronic non-contagious disease or HIV/AIDS infection, or for any other similar reasons considered by the perpetrator to constitute causes of inferiority in respect of one person in relation to others.” Article 369 Incitement to hatred or discrimination “Inciting the public, by any means, to hate or discriminate against a category of people is punishable by imprisonment of between six months and three years or by a fine.” Emergency Government Ordinance no. 31/2002 38 .     Emergency Government Ordinance no. 31/2002 bans fascist or xenophobic organisations, symbols and acts, as well as the honouring or venerating of people responsible for committing genocide, crimes against humanity or war crimes. Discrimination under domestic law 39 .     Discrimination is prohibited by Article 16 of the Constitution, and is defined in Article 2 § 1 of the Anti-discrimination Ordinance (Government Ordinance no. 137/2000 on preventing and punishing all forms of discrimination). The relevant parts of the Anti-discrimination Ordinance are described in Cînța v. Romania (no.   3891/19, §§ 23-24, 18 February 2020) and M.C. and A.C. v. Romania (no. 12060/12, §§ 42-44, 12 April 2016, containing also one example of domestic practice). In addition, Article   15 reads as follows: Article 15 “[It] constitutes a misdemeanour under this ordinance (in the event that the deed [in question] does not [already] fall under criminal law), to engage in any public behaviour which is in the nature of nationalist/chauvinist propaganda, [amounts to] incitement to racial or national hatred (or any behaviour that aims to hurt [a person’s] dignity), or incites intimidation, hostility, [or efforts to] degrade, humiliate or offend, [and] which is directed against a person or a group of people or a community, and which is related to [such people’s] race, nationality, ethnicity, religion, social status, membership of a disadvantaged section [of society], beliefs, sex or sexual orientation.” Civil Code 40 .     Article 1349 of the Civil Code, in force since 1 October 2011, regulates liability in tort as follows: Article 1349 “(1)     Every person has a duty to respect the rules of conduct that the law or local custom imposes and not to infringe, through [his or her] actions or inactions, the rights or legitimate interests of other people. (2) Those who knowingly breach this obligation shall be responsible for all damage caused, and must provide reparation in full. (3) In the specific cases provided by law, a person must provide reparation for damage caused by the deed of another, by objects or animals under their control, or by a building owned by them falling into ruin. (4) Liability for damage caused by defective products shall be regulated by a specific Act.” Domestic practice 41 .     The Romanian Academic Society ( Societatea Academică din România – a Bucharest-based think tank and NGO) published a report in 2016 on the national legislation and domestic case-law regarding hate speech and discriminatory speech. The relevant parts concerning bias in the justice system against homosexuals) read as follows: “V. 2. Hate speech in the case-law of the criminal court The number of cases examined that concerned incitement to hatred or discrimination under Article   369 of the new Criminal Code or its previous versions – incitement to discrimination under Article 317 of the Criminal Code (as in force after 2006) and chauvinist nationalist propaganda under Article 317 of the Criminal Code (as in force before 2006) – and the number of criminal cases examined as offences prohibited under [Emergency Government Ordinance no. 31/2002] is very low, which gives us a limited perspective on how those legal provisions [have been] applied in practice. The very fact that few such cases are sent to court in comparison with the number of cases recorded under those offences shows that the crime of incitement to hatred or discrimination (and previous versions thereof) and the offences prohibited by [Emergency Government’s Ordinance no. 31/2002] are difficult for the judicial organs to apply in practice. The decision to send [an accused] to stand trial for such crimes rests with the prosecutor’s office. The latter sifts through cases that could fall under the provisions regarding such crimes, making a first assessment and applying the [relevant] legal definition. In 2014, out of fifty-nine   cases concerning the crime of incitement to hatred or discrimination, Romanian prosecutor’s offices resolved nineteen cases by means of a decision not to prosecute – ending the criminal investigation and closing [the proceedings]; in the first half of 2015, out of forty-seven cases, they resolved twenty by means of a decision not to prosecute – ending the criminal investigation and closing [the proceedings]. Consequently, over a year and a half, more than a half of the cases ... opened (thirty-nine of sixty-eight) [were] not [resolved in a manner that] satisfied, in the interpretation of the prosecutor’s offices, the requirements for prosecution under Article   369 of the new Criminal Code. As for offences prohibited by [Emergency Government Ordinance no. 31/2002], in the same period, out of fifty ‑ three cases opened, the prosecutor’s offices resolved seventeen, of which only one case was forwarded to a court. This situation raises questions about the applicability in practice of the crime of incitement to hatred or discrimination – either in terms of (i) the clarity of the legal definition of that crime [and] how it is understood by those who lodge petitions/complaints or who open investigations and by prosecutors who [choose] not to prosecute cases and their good faith in interpreting and/or applying the law, or (ii) [the question of] the effectiveness of the law in terms of identifying perpetrators and the acts that constitute such crimes. In the following chapters we analyse the substance of these crimes and the way in which they have been interpreted and applied by the judiciary (with reference to the available case ‑ law), with a view to establishing whether the law is clear or legislative amendments are still needed. The crime of incitement to hatred or discrimination We specify that since the entry into force of the new legal definition provided in Article   369 of the new Criminal Code (Incitement to hatred or discrimination), no court decision has been rendered that would enable the applicability of this provision to be examined. Therefore, the present analysis is based on cases in which the applicability of the older [version of the provision] was examined – that is to say Article   317 of the Criminal Code (Incitement to discrimination or nationalist/chauvinist propaganda) – and we distinguish between the two, where necessary, in accordance with the new text (Article 369 of the new Criminal Code).” 42 .     By its decision no. 9, dated 7 January 2015, the National Council for Combating Discrimination (“the NCCD”) declared that statements made by a politician portraying homosexuals as mentally ill or as paedophiles had not exceeded the limits of the freedom of expression enshrined in Article   10 of the Convention, but advised politicians to refrain from making such statements in future. The case in question had been brought by the applicant association against a member of the parliament who had made the statements at issue (referred to in the 7 January 2015 decision) in a press interview. The applicant association had complained of discrimination against homosexuals and a violation of their personal dignity. Relevant international materials 43 .     The European Commission against Racism and Intolerance (ECRI) released, in 2019, a country report on Romania, the relevant parts of which read as follows: “27     ECRI notes that LGBT persons are targets of a high level of prejudice and offensive language, including by mainstream politicians. For instance, in 2017, a member of the Senate made derogative remarks about homosexual persons. In 2018, a group of protesters interrupted the screening of an award-winning film [by] chanting anti ‑ LGBT slogans, claiming it violated traditional Romanian values. The recent referendum on changing the gender-neutral definition of marriage (see § 91) also triggered an increase in hate speech and fuelled homophobia. Hate speech by extremist groups 28. ECRI considers that the New Right ( Noua Dreaptǎ ) movement deserves mention because of its overt use of the Iron Guard legacy through holding public events with anti-Roma and antisemitic themes and engaging in the systematic use of hate discourse against ethnic Hungarians, LGBT persons and immigrants. For example, in October 2017, at the National Opera in Cluj-Napoca, members of this movement disrupted a concert in which an Islamic call to prayer was recited as part of the performance. ECRI is pleased to note that the New Right is not represented in the Romanian Parliament. On a related note, ECRI welcomes the banning of the political party, ‘All for the Country ( Totul Pentru Țarǎ )’ in 2015, due to its use of fascist symbols originating from the Legionary movement. ... 63.     ECRI recommends that the authorities provide further training for police, prosecutors and judges on how to deal with racist and homo-/transphobic acts of violence. This should include improved procedures for recognising bias-motivations. Furthermore, it also recommends that, in order to address the problem of underreporting, the authorities enhance cooperation between the police and vulnerable groups, in particular the Roma and the LGBT communities. ... 95 . There are several studies showing that intolerance and discrimination towards LGBT persons are widespread in Romanian society. The opinion poll conducted by the NCCD revealed that LGBT persons are the fifth most unwanted group after persons living with HIV, drug addicts, persons with disabilities and Roma. Only 7% of respondents said that they would accept a homosexual as their relative, while 12% of them would want an LGBT person to be their colleague. These extremely low levels of societal acceptance contribute to significant discrimination and stigmatisation against LGBT persons in key areas of life. Between 2013 and 2016, the National Council for Combating Discrimination (NCCD), which deals with discrimination complaints based on sexual orientation, received a total of 33   complaints on this ground. In 2017, 17 out of the 682 petitions lodged before the NCCD were related to sexual orientation. The NCDD imposed a warning and a fine in two cases and issued a recommendation in another two. ECRI considers that these low numbers of cases before the NCCD may signify a problem of underreporting of discrimination among the LGBT community. ... 99.     Although the problem of intolerance vis-à-vis LGBT persons is evident, there is no policy to combat this phenomenon in Romania. The draft National Strategy ‘Equality, Inclusion, Diversity’ (2018-2022) contains some measures – albeit not specifically targeted – to promote ... non-discrimination [against] LGBT people. In view of the above-mentioned lack of information about LGBT people and the significant discrimination which they experience, ECRI considers that the authorities should take urgent measures to promote tolerance towards LGBT persons in all areas of everyday life, as well as to combat homophobia and transphobia. 100.     ECRI recommends that the authorities draw up and adopt an action plan, either as a separate policy document or as part of national plans currently in the drafting process, which should include the objectives of protecting LGBT persons against hate speech, violence and discrimination, raising awareness about their living conditions, promoting understanding of LGBT persons and making their right to equal treatment a reality.” THE LAW ALLEGED VIOLATION OF ARTICLES 3, 8 AND 14 OF THE CONVENTION and OF ARTICLE 1 OF PROTOCOL NO. 12 TO THE CONVENTION 44 .     Relying on Articles 3 and 8 of the Convention, the applicants complained of the lack of protection from the State authorities against the degrading and humiliating treatment to which they felt they had been subjected by private individuals on 20 February 2013. They furthermore complained, under the same Articles, that the authorities had failed to conduct an effective investigation into the incident of 20 February 2013. In their view, the authorities’ lack of reaction in terms of both protection and investigation had been caused by their bias against the applicants because of their sexual orientation, contrary to Article 14 read in conjunction with Articles   3 and 8 of the Convention. They also considered that the same reasons that (in their view) had led to a violation of Article 14 of the Convention, had also triggered a violation of Article 1 of Protocol No. 12 to the Convention. Those Articles read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “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 “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 “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.” Admissibility Victim status of the applicant association 45.     The applicant association, ACCEPT, complained, together with the five individual applicants, that the attack by the counte