CEDH · CASELAW;CLIN;ENG — 12 avril 2016

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Hungary - 64602/12 Judgment 12.4.2016 [Section IV] Article 8 Positive obligations Article 8-1 Respect for private life Inadequate investigation into racist abuse directed at woman of Roma origin: violation Facts – In 2011 several right-wing groups organised an anti-Roma rally in Gyöngyöspata, the village where the applicant, who was of Roma origin, lived. During the rally four men yelled racist insults at the applicant, who was in her garden together with her child and some acquaintances, and threatened her with an axe. The applicant lodged a criminal complaint about the incident. However, the ensuing investigations were ultimately discontinued. Law – Article 8: The abuse that occurred during the anti-Roma rallies was directed against the applicant by reason of her belonging to an ethnic minority. This conduct necessarily affected her private life, in the sense of ethnic identity, within the meaning of Article   8 of the Convention. When investigating violent incidents, State authorities had an additional duty under Article   3 of the Convention to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have also played a role in the events. Furthermore, acts of violence such as inflicting minor physical injuries and making verbal threats may require the States to adopt adequate positive measures in the sphere of criminal-law protection, in accordance with Article   8 of the Convention. A similar obligation could therefore arise in cases where alleged bias-motivated treatment did not reach the threshold necessary for Article   3, but constituted an interference with the applicant’s right to private life under Article   8, as in the instant case. The impugned insults and acts took place during an anti-Roma rally and came from a member of an openly right-wing paramilitary group. There were therefore grounds to believe that it was because of her Roma origin that the applicant had been insulted and threatened. Thus, it had been essential for the domestic authorities to conduct the investigation in that specific context, taking all reasonable steps with the aim of unmasking the role of racist motives in the incident. The necessity of conducting a meaningful inquiry into the discrimination behind the incident was indispensable given that it was not an isolated case but formed part of the general hostile attitude against the Roma community in Gyöngyöspata. Despite this, the domestic authorities completely disregarded the racist motives behind the attack. Moreover, the legal provisions in force at the material time provided no appropriate legal avenue for the applicant to seek remedy for the alleged racially motivated insult. Therefore, the respondent State’s criminal-law mechanisms as implemented in the instant case were defective to the point of constituting a violation of the respondent State’s positive obligations under Article   8 of the Convention. Conclusion : violation (six votes to one). The Court also rejected the applicant’s complaint about the authorities’ failure to fulfil their positive obligations under Article   3 read in conjunction with Article   14 of the Convention as being manifestly ill-founded, as the racist abuse the applicant had been subject to did not reach the minimum level of severity required in order for the issue to fall within the scope of Article   3 of the Convention. Article 41: EUR 4,000 in respect of non-pecuniary damage. (See also, with respect to allegedly racially motivated violence under Article   14 read in conjunction with Article   3, Nachova and Others v.   Bulgaria [GC], 43577/98 and 43579/98, 6   July 2005, Information Note   77 ; and, more generally, the Factsheet on Roma and Travellers )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes