MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-27

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-27 M.C. and A.C. v. Romania (Application No. 12060/12) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)1140, DH-DD(2021)1033, CM/Del/Dec(2019)1355/H46-30

 

Application	Case	Judgment of	Final on	Indicator for the classification
12060/12	M.C. AND A.C.	12/04/2016	12/07/2016	Complex problem

Case description

This case concerns the failure of the authorities to conduct an effective investigation, including into possible homophobic motives, of a physical and verbal attack on the applicants, which occurred after they had left a police-protected LGBTI rally in 2006 (violation of Article 3 in conjunction with Article 14).

Status of execution

The Committee of Ministers first examined the case at its 1355^th meeting (September 2019) (DH), when it decided to transfer it to the enhanced supervision procedure to give impetus to the implementation of the measures required to guarantee non-repetition of the violation.

Individual measures:

At its first examination the Committee accepted with regret that no further individual measure was possible, as the statutory limitation precluded reopening the domestic criminal investigation.

General measures:

A.    First examination by the Committee (September 2019)

The Committee noted with interest the measures taken to reinforce protection via the criminal law against hate crime and the authorities’ ongoing efforts to ensure the effectiveness of investigations. It nevertheless considered that further intensified efforts were required in several areas (see below). It invited the authorities to continue to ensure appropriate direction and coordination of these efforts and to cooperate with the Execution Department. It also strongly encouraged them to pursue and strengthen their cooperation with civil society and to take full advantage of the Council of Europe’s specialised projects and technical co-operation programmes.

B.    Developments since the Committee’s first examination

In July 2020, the authorities submitted updates on some of the remaining questions outlined by the Committee (DH-DD(2020)609).

In March 2021, the authorities and the Execution Department held consultations on the additional steps required to respond fully to the Committee’s calls. Representatives from the Council of Europe Sexual Orientation and Gender Identity Unit (SOGI) and the Programme on Human Rights Education for Legal Professionals (HELP) also attended to outline possibilities for furthering the authorities’ cooperation with the Council of Europe, especially in the field of capacity building.

The authorities’ latest submissions in this case, received on 12 October and 2 November 2021, provide information about the measures taken and envisaged, including in the light of these exchanges, to guarantee non-repetition of the violation. Their main elements are summarised below (for details, see
DH-DD(2021)1033 and DH-DD(2021)1140).

1) Legislative and policy framework to fight hate crime and hate speech

As already noted, since the attack, the protection in Romanian criminal law against hate crimes and hate speech has been reinforced. This protection is supplemented by administrative law,[1] which empowers the national equality body (the National Council for Combatting Discrimination (CNCD)), to sanction various discriminatory acts as misdemeanors (contravenţii), unless classified as offences under criminal law.

With regards to hate crime, as of 2006, the Criminal Code makes discriminatory motives for an offence, including sexual orientation, a statutory aggravating factor, which entails an obligation for the authorities to investigate of their own motion its incidence in a given case.

With regards to hate speech, the Criminal Code punishes incitement to hatred of or discrimination against a category of individuals (Article 369). Parliament enacted amendments this year to extend this protection to individuals belonging to a protected category and to make incitement to violence similarly punishable. The Constitutional Court has very recently upheld a constitutionality challenge in relation to the amendments.[2] It considered them insufficiently precise, because they did not specify which were the protected categories, observing that this made it difficult to determine whether a type of discourse constitutes a crime or an administrative offence. Parliament will now re-examine the amendments to bring them into line with this ruling.

In May this year, Romania launched its first National Strategy on preventing and combatting antisemitism, xenophobia, radicalisation and hate speech, to be implemented over 2021-2023. This provides a framework to assess the need to further enhance the relevant legislation; to strengthen the capacity of the domestic authorities to fight against these phenomena; to promote tolerance, civic education and resilience of Romanian society against them; and improve data collection (for details, see below).

2) Measures to ensure an effective response by the criminal justice system to hate crime and hate speech

a.             Special police investigative unit

In May 2021, the Minister of Internal Affairs instructed the Directorate for Criminal Investigations of the General Inspectorate of the Romanian Police (the “IGPR”) to establish a specialised bureau tasked with investigating hate crime. Recruitment for this unit is due to be launched shortly.

b.            New methodology for the investigation of hate crime

As previously announced, the General Prosecutor’s Office (the “GPO”) developed and adopted in October 2020 a methodology to provide guidance on and practical instructions for detecting and investigating hate crime. The methodology was disseminated to prosecutors across the country. It was also sent to the National Institute for Judiciary, to be included in the initial and in-service training for prosecutors. The police investigative bodies, which carry out their duties under the direction and oversight of the prosecution service, also draw on this methodology.

Prosecutors are instructed, when they terminate such investigations without charge, to refer cases to the national equality body where there are indications that these may entail administrative liability.

c.             Reviews of criminal investigations into hate speech allegations

To assess the prosecutorial response, the GPO carried out two thematic reviews of relevant cases resolved between 2016 and 2019 and disseminated their conclusions to the offices across the country with a view to remedying the deficiencies found, including in the collection of statistical data.

The Judicial Inspection carried out a similar review. The plenum of the Superior Council of Magistracy examined its conclusions in May this year and decided among others to set targets related to the handling of such cases by the prosecutor’s offices as well as to include themes related to hate speech in the
in-service training provided at the level of these offices. 

d.            Training and capacity building

In their latest submissions, the authorities acknowledge the Committee’s concerns at the persistence of negative attitudes towards LGBTI persons in Romania including among public officials and stress that significant efforts are made to increase awareness of the officials in the justice system to hate crime in general and to enhance their capacity to detect and adequately react to homophobic acts.

Initial training

Future senior police officials, enrolled in the Police Academy, receive mandatory training in criminology, which includes a distinct module on hate-motivated criminality as of 2017. Aspects related to detecting and proving bias motivation are addressed also in their mandatory training in criminal law. Police cadets in vocational schools receive more general training on preventing and combatting discrimination and hate-motivated acts.

The National Institute for Judiciary provides mandatory training to future judges and prosecutors on the Convention and the Court’s case-law, including this judgment, and on combatting discrimination. Trainees are also acquainted with the tools developed by the Council of Europe to support the domestic implementation of the Convention, including the HELP online platform.

In-service training

The authorities’ latest submissions provide information about initiatives in response to the Committee’s call for a strengthening of the capacity of the criminal justice system to tackle effectively hate crime and hate speech. Most of these have been or will be carried out in cooperation with the national equality body, civil society and international partners, including the Council of Europe, as part of programmes implemented with support from the Norwegian Financial Mechanism.

The GPO and the IGPR are each pursuing targeted co-operation with the Council of Europe’s SOGI Unit and HELP Programme, with civil society involvement, to provide training to prosecutors and to the investigative personnel in the Criminal Investigation Directorate and its territorial units (for details, see
DH-DD(2021)1033 and DH-DD(2021)1140).

3) Measures to improve reporting, registration, and data collection

The authorities refer, without further details, to ongoing action to improve reporting and registration of hate crime, in the framework of two projects in which the GPO has partnered with the European Fundamental Rights Agency (FRA) and with an NGO (the ACCEPT Association) which works to protect and promote the rights of LGBTI persons. The first project more generally aims to enhance the protection of victims of crime and the second (which also involves the Ombudsperson’s Institution) – to support the implementation of this and of other Court judgments finding violations of LGBTI persons’ fundamental rights.

Action is likewise ongoing to address the Committee’s concerns about the lack of integrated and consistent data collection on hate crime at national level.

Specifically, a working group composed of representatives of the authorities concerned,[3] with support from the National Institute for Statistics, is developing a common methodology for collecting the relevant data, due to be completed by November 2022.

In parallel, the Ministry of Justice is upgrading its IT case management system for courts and prosecutors’ offices, including to allow collection of data on the precise motivating factor in a case. This is due to be completed by 2023. The IGPR is also implementing a project to improve the identification and registration of hate crimes in the police records and databases, through IT developments, trainings, and peer-to-peer exchanges with European counterparts.

Analysis by the Secretariat

While the facts of the case occurred shortly before the adoption in 2006 of criminal law provisions introducing specific protection against hate crime , the Committee has at its disposal more recent indications that these have rarely been applied and that the response of the criminal justice system to such crimes remains, for the time being, inadequate.[4] The information the authorities have provided in this case in relation to the application of the provisions criminalising hate speech seems to point out to the same general deficiency.

The authorities have put forward a range of measures to increase the capacity of their criminal justice system to adequately respond to hate crime and hate speech and thus address the problem revealed by the judgment. In developing them, they have paid heed to the indications provided by the Committee of Ministers on some aspects requiring priority action on their part. They have also established promising synergies with civil society, the national equality body and with specialised Council of Europe units in defining and implementing some of these measures, notably in the field of capacity building. All these elements are positive and can be noted with satisfaction.

The Committee must be assured that the measures put forward can bring about a swift and definitive resolution of this problem, which is still prevailing even though this judgment has been final for more than five years.

Therefore to allow a comprehensive assessment of the authorities’ response, more information appears necessary about the content and scope of some of these measures and more generally about the timeframe envisaged for their implementation, as follows:

As regards the legal framework, the Constitutional Court’s recent ruling appears to support the view, already put forward at the Committee’s previous examination, that the non-application of the provisions criminalising hate speech may be linked to deficiencies in their wording. It remains thus necessary to know how and according to which timeframe the authorities envisage addressing this problem.

As regards the establishment of the special police investigative unit, it is important to know how this unit will operate (whether it will be competent across the country or supported by territorial units) and when it is due to become fully operational.

As regards the capacity-building action, in view of the scale of the problem revealed by the judgment, it is important to make sure that the promising initiatives put forward are part of a sustained and cohesive action aimed at ensuring, in as short period of time as possible, that police personnel, prosecutors and judges who deal with such cases are suitably trained and prepared to detect and handle hate crime and hate speech. The authorities should elaborate on their strategic focuses in this area and on how these will allow meeting the above objectives.

As regards the ongoing steps to improve reporting and registration of hate crime, it is necessary to have information about the concrete measures envisaged and the timeframe for their implementation.

When it comes to the measures required to improve data collection on hate crime, it is positive that
co-ordinated action is underway to respond to the Committee’s concerns and every effort should be made to complete it without delay. As already noted, and as acknowledged by the authorities in their latest submissions, the current systems do not allow acquisition of an integrated and consistent view of the prevalence of hate crime and the criminal justice system’s response to it. This in turn makes it difficult to assess the impact of the measures taken to implement this judgment, including to determine if any additional or corrective action is necessary to guarantee non-repetition of the violation.

It is likewise crucial that the relevant authorities continue to monitor closely the implementation of the measures adopted, such as the specific methodology for the investigation of hate crime, and their impact, and provide the Committee, in due course, with qualitative analyses, supported by relevant data and information.

Given the need to rapidly advance the execution process, the authorities could be requested to provide information on the remaining questions identified above, preferably through an updated action plan, by 31 March 2022 at the latest. 

Financing assured: YES