Failure to investigate Roma woman’s allegations of racial abuse from right-wing paramilitary violated article 8, rules Strasbourg



Scottish Legal News

A Hungarian national of Roma origin’s complaint that the authorities failed to investigate allegations she suffered racial abuse and threats from participants in an anti-Roma march has been upheld by a majority at the European Court of Human Rights.

The court considered in particular that, given that the insults and acts in question had taken place during an anti-Roma march and had come from a member of an extremely right-wing vigilante group, the authorities should have conducted the investigation in that specific context. However, they had failed to take all reasonable steps to establish the role of racist motives.

The applicant, Ms R.B., is a Hungarian national who was born in 1988 and lives in the village of Gyöngyöspata (Hungary).

Over a period of several days in March 2011 a civil guard association and two right-wing paramilitary groups organised marches in the Roma neighbourhood of Gyöngyöspata in the context of a demonstration held in the village by a right-wing political party.

On the days of the marches there was a considerable police presence in the village. On the day of one of the marches, four men passed by Ms R.B.’s house – while she was outside in her garden with her child and several acquaintances – yelling “Go inside, you damned dirty gypsies!” One of the men threatened her and her acquaintances that he would build a house in the Roma neighbourhood “out of their blood” and stepped towards the fence swinging an axe in her direction.

In April 2011 Ms R.B. lodged a criminal complaint with the police against unknown perpetrators, alleging the offences of violence against a member of an ethnic group, harassment and attempted grievous bodily assault. The police opened an investigation on charges of violent harassment, which was later joined to criminal proceedings on charges of harassment which had been opened following a complaint lodged by the president of the local Roma minority self-governing body. The proceedings were discontinued in July 2011 on the grounds that harassment was punishable only if directed against a clearly identified person and that criminal liability could not be established on the basis of threats uttered in general.

In subsequent minor offence proceedings, which were later stayed, a number of witnesses were heard who identified several persons as having participated in the incident. Ms R.B. identified one man as the person who had threatened her. In October 2011 the prosecutor’s office opened a separate investigation into the allegations of harassment on the basis of her complaint. A request by her lawyer to open an investigation into the offence of violence against a member of an ethnic group was refused by the prosecutor, finding that the use of force, an objective element of the alleged crime, could not be established.

The investigation into harassment was eventually discontinued, on the grounds that none of the witness statements supported Ms R.B.’s allegation that she had been threatened. The decision was upheld in March 2012. Subsequent private prosecution proceedings brought by Ms R.B. were eventually discontinued since she withdrew her charges for fear of reprisals.

As regards the complaint concerning the authorities’ failure to carry out an effective investigation, the central issue for the court was that the alleged abuse which had occurred during the anti-Roma rally had been directed against Ms R.B. for her belonging to an ethnic minority.

That conduct had necessarily affected her private life within the meaning of article 8. Ms R.B. had lodged her criminal complaint into the verbal abuse and threats less than a month after the incident, in April 2011. The police had joined her case to another criminal complaint concerning the same events and had opened an investigation into the offence of harassment, which was

subsequently discontinued. A separate investigation into her allegations had been opened six months later. In the initial criminal complaint Ms R.B. had already submitted that she had been victim of a racially motivated attack, alleging that it had constituted, in particular, violence against a member of a group and harassment. Nonetheless, in the reinitiated investigation the law enforcement authorities had again concentrated only on harassment.

When subsequently requesting to have the scope of the investigation extended to the offence of violence against a member of an ethnic group, Ms R.B.’s representative had submitted a detailed description of the events and had argued that the anti-Roma motive should have been assessed in the investigation. However, those submissions had been to no avail, the prosecutor finding that the use of force, an objective element of the alleged crime, could not be established.

Given that the insults and acts in question had taken place during an anti-Roma rally lasting for several days and had come from a member of an extremely right-wing vigilante group, the court considered that it would have been essential for the authorities to conduct the investigation in that specific context and to take all reasonable steps to establish the role of racist motives.

Moreover, the court noted that the Hungarian criminal law, as in force at the time, namely the provisions on the offences of violence against a member of a group and incitement against a group appeared to provide an appropriate legal basis for launching a criminal investigation into alleged bias motives.

However, in Ms R.B.’s case, the law-enforcement authorities had found that an objective element of the crime of violence against a member of a group could not be established and there were no grounds to pursue the investigations into that offence. The court also observed that the provision of the Criminal Code on harassment, on which the authorities had focused, did not contain any element alluding to racist motives.

In conclusion, the manner in which the criminal law had been applied in the case had been defective, with the result that there had not been an adequate investigation into Ms R.B.’s complaint of racially motivated abuse. There had accordingly been a violation of article 8.

At the same time, the court declared inadmissible the complaint under article 8 concerning the authorities’ inaction during the rallies as being manifestly ill-founded, coming to the conclusion that there had been no appearance of an unreasonable response by the police to the demonstrations.

The court also declared inadmissible Ms R.B.’s complaint under article 3 read alone or in conjunction with article 14 as being manifestly ill-founded. While the right-wing groups had been present in her neighbourhood for several days, they had been continuously monitored by the police. No physical confrontation had taken place between the Roma inhabitants and the demonstrators.

The statements and acts by one of the demonstrators, although openly discriminatory and performed in the context of marches with intolerant overtones, had not been so severe as to cause the kind of fear, anguish or feelings of inferiority that were necessary for a complaint to fall within the scope of article 3.

The court held that Hungary was to pay Ms R.B. €4,000 in respect of non-pecuniary damage and €3,717 in respect of costs and expenses.

Judge Wojtyczek expressed a dissenting opinion, which is annexed to the judgment.