Romania – LGBTI Rights: Accession too soon? Better something than nothing.
By Charles Slidders
Romania has a deeply entrenched homophobic culture and, together with Slovakia, competes for the title of the most homophobic country in Europe. Despite joining the European Union and the Council of Europe, and purportedly adopting European values, the country continues to hold deeply prejudicial views of homosexuals. According to the 2015 Eurobarometer public opinion survey, only 36 per cent of Romanians believe that gay, lesbian and bisexual people should have the same rights as heterosexuals, only 24 per cent believe there is nothing wrong with a relationship between two people of the same sex, and only 21 per cent think gay marriage should be legal across Europe.
Accordingly, many would argue that the EU should not have allowed Romania to accede in 2007 because its culture did not reflect European values. However, Romania’s attempt to demonstrate its ‘Europeanisation’ since the collapse of communism, and, in particular, since beginning the accession process in 2000, has resulted in some – albeit limited – improvements in Romania’s treatment of homosexuals. Furthermore, Romania’s subsequent membership of the EU and the Council of Europe has exposed the country’s treatment of homosexuals to the scrutiny of the European Court of Human Rights and the Court of Justice of the European Union and provided victims of homophobic conduct and discrimination with judicial recourse beyond state institutions.
Romania’s homophobic culture is changing, but very slowly; it is a case of ‘three steps forward and two steps back.’
The Council of Europe and the ECHR
After the collapse of communism and well before acceding to the EU, Romania was determined to demonstrate its acceptance of European values. In 1993 it joined the Council of Europe and in 1994 ratified the European Convention on Human Rights (ECHR). In ratifying the ECHR, Romania not only agreed to protect the human rights referred to therein but also conferred jurisdiction on the European Court of Human Rights. In doing so, institutional homophobic conduct has been subject to judicial review.
For instance, in MC and A.C. v. Romania, two participants in Bucharest’s gay pride march were beaten by assailants shouting homophobic slurs. The victims made a police complaint but the police failed to investigate their claims with any real vigour. The victims complained to the European Court of Human Rights, and the Court held that Romania had violated Article 3 (the procedural limb of the prohibition of torture) in conjunction with Article 14 (prohibition of discrimination). The victims were each awarded €7,000. In reaching that decision, the Court stated:
the authorities did not take reasonable steps with the aim of examining the role played by possible homophobic motives behind the attack. The necessity of conducting a meaningful inquiry into the possibility of discrimination motivating the attack was indispensable given the hostility against the LGBTI community in the respondent State […] and in the light of the applicants’ submissions that hate speech, that was clearly homophobic, had been uttered by the assailants during the incident. . . . .
If Romania had not ratified the ECHR as part of its Europeanisation campaign, the victims in MC and A.C. v. Romania would not have had any recourse to compensation.
The Accession Process
In February 2000, Romania was invited to commence talks regarding its proposed accession to the EU. As part of the accession process Romania was required to demonstrate that its laws reflected European values and that it met the accession criteria (the Copenhagen Criteria), which included respect for human rights. Shortly after commencing accession negotiations, in August 2000, Romania adopted anti-discrimination laws specifically prohibiting discrimination based on sexual orientation. In 2001 Romania repealed legislation criminalising consensual homosexual acts.
There can be little doubt that the accession condition requiring respect for human rights encouraged Romania to adopt legislation de-criminalising homosexual conduct and protecting homosexuals from discrimination.
The CJEU and Non-Discrimination in the Employment Context
In acceding to the EU, Romania conferred jurisdiction on the Court of Justice of the European Union (CJEU). Accordingly, victims of homophobic discrimination and conduct in the application of EU law were granted recourse to the CJEU. In ACCEPT v. the National Council for Combating Discrimination, homophobic comments were made by a director and shareholder of a professional football club concerning the recruitment of a homosexual footballer. The Romanian anti-discrimination council held that the comments could not be imputed the football club and, although it convicted the director of harassment, only imposed a written warning.
The CJEU ruled that the football club could be held liable for the director’s homophobic slurs because it failed to distance itself from his comments. The Court also ruled that Romanian law lacked a meaningful penalty for the homophobic slurs (a written warning). Accordingly, Romania did not comply with the EU requirement to have a regime of “effective, proportionate and dissuasive sanctions” where there is a finding of discrimination on grounds of sexual orientation. The CJEU applied broader and more severe sanctions in regard to discrimination on the basis of sexual orientation than the Romanian anti-discrimination tribunal.
Same-Sex Marriages, the CJEU, and the ‘Family Values’ Referendum
Despite purportedly adopting European values of tolerance and non-discrimination, Romania remains a deeply homophobic society. Romania’s homophobia was manifested by its recent referendum to ban same sex marriages. In 2015, the Coalition for the Family collected 3 million signatures in support of its initiative to amend the constitution, redefining the family in strictly heterosexual terms. The referendum conducted in October 2018 failed because of low voter turnout (20.4% of voters cast ballots, 30% voter turnout was required). Although the referendum is a manifestation of Romania’s entrenched homophobia, at the same time, it should be recognised that a successful referendum would have placed Bucharest on a collision course with Brussels, as evidenced by another CJEU decision.
In Coman v. Romania, the Romanian state refused to recognise a same-sex marriage which took place in 2010 in Brussels. Without this formal recognition, the couple could not live together in Romania for more than 3 months at a time, as residency rights are only granted to heterosexual couples and family members. The CJEU condemned Romania’s discriminatory practices only months before the conduct of the referendum and held that “a third-country national of the same sex as a Union citizen whose marriage to that citizen was concluded in a Member State in accordance with the law of that state has the right to reside in the territory of the Member State of which the Union citizen is a national for more than three months.”
More than 25 years after joining the Council of Europe, almost 20 years since beginning the process to accede to the European Union, and after more than a decade of membership in the EU, Romania remains deeply homophobic. However, Romania, in an effort to accede to the EU, decriminalised homosexual acts and prohibited discrimination on the basis of sexual orientation. In conferring jurisdiction on the Court of Justice of the European Union and the European Court of Human Rights, Romania’s homophobic conduct and discriminatory practices have been subject to European review, censure and rebuke. Without this ‘Europeanisation’, homosexual victims of discrimination and intolerance would have no recourse beyond domestic courts, and homosexual acts would have remained criminalised. Furthermore, since Europeanisation and accession, the culture is changing, albeit slowly. As stated by Ms. Iordache, Bucharest’s Pride marches have grown from a few hundred people to more than 10,000 over the last 15 years.
On balance, Romania’s Europeanisation has assisted in progressing LGBTI rights in Romania; but there is a long way to go.
Charles Slidders graduated from the University of Melbourne Law School more than 20 years ago. For the last 10-years he has practised as a litigator in New York City. Charles began his legal career working with an Australian indigenous land council and graduated with a LLM in International Human Rights Law in 2003. He is passionate about human rights and has now returned to study with the intention of working in the protection and promotion of human rights.
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