CEDH · CASELAW;CLIN;ENG — 17 janvier 2017

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Hungary - 10851/13 Judgment 17.1.2017 [Section IV] Article 8 Positive obligations Lack of comprehensive law-enforcement approach to anti-Roma demonstration: violation Facts – The applicants were Hungarian nationals of Roma origin. In August 2012 an anti-Roma demonstration was held. Speeches were made following which demonstrators marched between houses inhabited by the Roma, threatening the inhabitants and engaging in acts of violence. The applicants complained that the authorities had failed in their obligations to protect them from racist threats during the demonstration and to conduct an effective investigation into the incident in breach of Article   8. Law – Article   8 (a)     Applicability – Article   8 embraced multiple aspects of a person’s physical and social identity and an individual’s ethnic identity had to be regarded as another such element. The threats uttered against the Roma during the course of the demonstration did not actually materialise into concrete acts of physical violence against the applicants themselves. Nonetheless, the Court considered that the fact that certain acts of violence had been carried out by at least some of the demonstrators and that following the speeches the demonstrators had marched in the Roma neighbourhood shouting threats would have aroused in the applicants a well-founded fear of violence and humiliation. Further, the threats had been directed against the inhabitants on account of their belonging to an ethnic minority, and had thus necessarily affected the feelings of self-worth and self-confidence of its members, including the applicants. (b)     Merits – The domestic courts had concluded that there had been no legal basis to disperse the demonstration, since it had maintained its generally peaceful nature, despite some unruly incidents. The Court was satisfied that there was no appearance of arbitrariness or a manifest lack of judgment on the part of the authorities as regards the decision of the police not to disperse the demonstration. In particular, the national courts had engaged in an assessment of whether the action taken by the police had been professionally justified and whether it had been sufficient to protect the applicants and the Roma community in general, emphasising that the police had taken a number of preparative steps and, during the demonstration, had placed themselves between the protesters and the local residents. Consequently, it was not appropriate to call into question the findings of the domestic courts concerning the adequacy of the police reaction to the demonstration. However, the fact remained that the applicants were unable to avoid a demonstration advocating racially motivated policies and intimidating them on account of their belonging to an ethnic group. The criminal investigation into the crime of incitement against a group was discontinued because the domestic authorities found that the speakers’ statements during the march were not covered by the relevant offence. An investigation was opened into the criminal offence of violence and the ensuing proceedings led to the conviction of one of the demonstrators. The manner in which the criminal-law mechanisms had been implemented was a relevant factor for the assessment of whether the protection of the applicant’s rights had been defective to the point of constituting a violation of the respondent State’s positive obligations under Article   8. The domestic authorities should have paid particular attention to the specific context in which the impugned statements were uttered. The event had been organised in a period when marches involving large groups and targeting the Roma had taken place on a scale that could qualify as large scale, coordinated intimidation. Racist statements taken together with the context in which they were expressed could constitute a clear and imminent risk of violence and violation of the rights of others. The proceedings had lasted almost three years and their scope was statutorily bound to be limited to the actual acts of violence. Although the police had had sufficient time to prepare themselves for the event and should have been able to interrogate numerous persons after the incident, only five demonstrators were questioned. That course of action had not been capable of leading to the establishment of the facts of the case and did not constitute a sufficient response to the true and complex nature of the situation complained of. The cumulative effect of the shortcomings in the investigations, especially the lack of a comprehensive law-enforcement approach into the events, was that an openly racist demonstration with sporadic acts of violence had remained virtually without legal consequences and the applicants had not been provided with the required protection of their right to psychological integrity. Conclusion : violation (five votes to two). Article 41: EUR 7,500 each in respect of non-pecuniary damage. (See P.F and E.F. v.   the United Kingdom (dec.), 28326/09, 23   November 2010, Information Note   135 ; Perinçek v.   Switzerland [GC], 27510/08, 15   October 2015, Information Note   189 )   © 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