CASE OF BALÁZS v. HUNGARY

SECOND SECTION

CASE OF BALÁZS v. HUNGARY

(Application no. 15529/12)

JUDGMENT

STRASBOURG

20 October 2015

FINAL

14/03/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Balázs v. Hungary,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Işıl Karakaş, President,
András Sajó,
Nebojša Vučinić,
Helen Keller,
Egidijus Kūris,
Robert Spano,
Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 1 September and 22 September 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 15529/12) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr János Krisztián Balázs (“the applicant”), on 5 March 2012.

2. The applicant was represented by Ms E. Muhi, a lawyer practising in Érd. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.

3. The applicant alleged that the authorities had failed in their obligation to conduct an effective investigation into a racist attack against him, in breach of Article 14 read in conjunction with Article 3 of the Convention.

4. On 1 September 2014 this complaint was communicated to the Government and the remainder of the application was declared inadmissible.

5. The applicant and the Government each filed observations on the admissibility and merits of the case. In addition, third-party comments were received from the European Roma Rights Centre, which had been given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1991 and lives in Szeged.

7. On 21 January 2011 around 4 a.m. the applicant and his girlfriend Ms D.L. were about to leave a club in Szeged, when three men in their twenties, unknown to them, started to insult them. The three men made degrading comments about the applicant’s Roma origin and about the physical appearance of his girlfriend.

8. Subsequently a fourth person, Mr E.D., appeared, presenting himself as a police officer. (In fact, he was a penitentiary officer.) When Mr E.D. was about to leave, the applicant questioned him about his attitude using offensive and vulgar language, upon which Mr E.D. turned back and got into a fight with the applicant, which ended due to the intervention of three persons, the applicant’s acquaintances.

Following the fight, Mr E.D. called the police. Two officers arrived. The applicant, Mr E.D. and Ms D.L. were then escorted to the local police station. They were released the day after. Although both the applicant and Mr E.D. had visible injuries, only Mr E.D. underwent a medical examination. According to the medical findings, he had bruises on his temple and a haematoma around his right eye.

9. On 23 January 2011 the applicant was examined by a general practitioner, who found that he had bruises on his chest, back, neck and face.

10. On 1 February 2011 the applicant lodged a criminal complaint with the Szeged Public Prosecutor’s Office against Mr E.D. He submitted that the three who had insulted him had shouted at him “Dirty gypsy, do you need a cigarette? Here is money!” and thrown cigarettes and money at him. He also maintained that Mr E.D., who presented himself as a police officer upon his arrival at the scene, had asked the others whether “[they] could not handle a dirty little gypsy” and, turning to him, had called him a gypsy. He also gave a description of the injuries he had suffered.

Furthermore, the applicant explained that the day after the incident he had identified Mr E.D. on a social network. He had extracted some of his posts and submitted them to the Prosecutor’s Office.

11. In these posts, Mr E.D. commented that the night before he “had been kicking in the head a gypsy lying on the ground when [he] was overcome by three of his buddies”. In reply to favourable posts by other users, Mr E.D. posted an Internet link to a video clip containing a widely known excerpt from a feature film with overtly intolerant and explicitly racist language. He added that the list of the types of people loathed by the character speaking in the clip could be completed with “some other types of rubbish living among us”.

12. On 7 February 2011 the Public Prosecutor’s Office opened a criminal investigation against Mr E.D. for the offence of “violence against a member of a group” within the meaning of section 170 (1) of the Criminal Code.

13. On 17 March 2011 the two police officers who had arrived at the scene were questioned, as well as Ms D.L. The latter corroborated the applicant’s version of the events. The testimony of the police officers’ did not contain any account of the incident; they had arrived at the scene only after the fight.

The applicant’s three acquaintances, whose intervention had ended the fight, were not questioned, their identity remaining unknown to the prosecution. The applicant was questioned about their contact details, however the only information he could provide were their nicknames.

14. In parallel, the Szeged Public Prosecutor’s office initiated an ex officio investigation into the same facts on charges of disorderly conduct (garázdaság). On 5 July 2011 Mr E.D. was questioned as a suspect, where he stated that the applicant had provoked him. He admitted to having pushed the applicant away in self-defence, but claimed that he had neither hit nor insulted him. He maintained that he had made no statement concerning the applicant’s Roma origin and that the fight had not taken place because the applicant’s Roma origin but because he had been attacked by the latter. As regards his comments on a social network, Mr E.D. stated that he had posted them for no particular reason and specified that “in fact [he] had not been kicking the boy’s head ... had [he] done so the [applicant] would have suffered more serious injuries”.

15. In a decision of 20 July 2011 the Public Prosecutor’s Office discontinued the investigation into the offence of “violence against a member of a group”, considering that there was no evidence substantiating that Mr E.D. had attacked the applicant out of racial hatred. Relying on the applicant’s complaint, Ms D.L.’s testimony, Mr E.D.’s statement given as a suspect in the parallel proceedings and the medical evidence, the Public Prosecutor’s Office concluded that it could not be established who had provoked the fight and whether there was a causal link between the insults directed against the applicant and the fight.

The applicant filed a complaint against the discontinuation on 26 July 2011.

16. On 8 August 2011 the applicant’s lawyer was given the opportunity to study the case-file. On the same day she requested Mr E.D. to be heard as a suspect, or at least as a witness; she also requested a confrontation (szembesítés) between the applicant and Mr E.D. This request was dismissed on the ground that Mr E.D. had already been heard as a suspect in the parallel proceedings on charges of disorderly conduct, and the records of his testimony were attached to the investigation file and used as documentary evidence.

On 16 August 2011 the applicant also challenged this decision and requested that further investigative measures to be taken.

17. On 8 September 2011 the Csongrád County Regional Public Prosecutor’s Office upheld the first-instance decision, considering that:

“Accepting the background of the incident, as recounted by the victim and Ms D.L., although it is likely that the action had racist motives, it cannot be proven sufficiently for establishing criminal responsibility – that is, unequivocally and beyond any doubt – that Mr E.D. ill-treated the applicant precisely because of his Roma origin. The racist motive cannot be established, in particular, since before the incident Mr E.D. had intended to leave the scene and only turned back because of the victim’s reproach, and the only information about the start of the fight originates in the contradictory statements of the victim and Mr E.D. Neither the victim nor Ms D.L. could provide further details as to the question whether after having turned back, Mr E.D. made any further racist comments before or during the fight. The Facebook post attached to the criminal complaint only reveals that Mr E.D. had insulted an unnamed and unidentifiable person of Roma origin the night before. It cannot be established unequivocally and beyond doubt, either from the post or from the subsequent messages, that [the insult] took place precisely because of the victim’s Roma origin.

Based on the above reasons and considering all available information and evidence in their entirety, Mr E.D.’s racist motive is probable at the maximum, but cannot be established beyond doubt.”

As regards further investigative measures, the Prosecutor’s Office stated that given the fundamental contradictions between the statements of Mr E.D., the applicant and Ms D.L., a confrontation between them had no prospects of success. Furthermore, Mr E.D. had given a detailed account of the facts in his testimony given as a suspect in the parallel proceedings, which rendered futile his further questioning.

18. On 11 May 2012 Mr E.D. was convicted of disorderly conduct by the Szeged District Court for having got into a fight with the applicant and was placed on one-year probation.

II. RELEVANT DOMESTIC LAW

19. The Criminal Code, as in force at the material time, provided, in so far as relevant, as follows:

Violence against any member of a national, ethnic, racial or religious group

Section 174/B

“(1) Whoever uses violence against another because that other person belongs to a national, ethnic, racial or religious group, or forces that person by violence or threats to do or not to do something or to tolerate any conduct commits a felony and shall be punishable with imprisonment of up to three years.”

Disorderly conduct

Section 339

“(1) Any person who displays an apparently anti-social and violent conduct aiming to incite indignation or alarm in other people is guilty of a misdemeanor punishable by imprisonment not exceeding two years, insofar as the act did not result in a more serious criminal offence.”

20. Act no. XIX of 1998 on Criminal Procedure provides as relevant:

Section 6

“(2) Criminal proceedings may only be initiated upon the suspicion of a criminal offence and only against a person reasonably suspected of having committed a criminal offence.”

III. RELEVANT INTERNATIONAL MATERIALS

21. A resource guide entitled Preventing and responding to hate crimes, published by the Organization for Security and Co-operation in Europe (OSCE) (Office for Democratic Institutions and Human Rights) in 2009 contains the following relevant passages:

Chapter 2 – Recognizing hate crimes

“The most common flaw in the investigation of hate crimes is the refusal or failure of law enforcement bodies to identify a criminal act as a hate crime. Therefore, for police officers and for NGOs who receive complaints or interview victims, it is essential to have some criteria by which to evaluate whether a case might be a hate crime.

Hate crime indicators are objective facts that signal that a case may involve a hate crime. If such indicators exist, the incident should be recorded as a possible hate crime and should trigger further investigation about the motive for the crime. The existence of such indicators does not prove that the incident was a hate crime. The proof of hate motivation will come only after a thorough and complete investigation, with a result confirmed by a court.

Hate crime indicators can be useful for NGOs, as they form an objective and consistent factual basis upon which to advocate with police or other governmental agencies for treating incidents as possible hate crimes.

Hate Crime Indicators

National experts and law enforcement agencies have developed guidelines by which to identify hate crimes, including detailed lists of hate crime indicators. While these may vary, the most common indicators are listed below.

Victim and Witness Perception

The perception of the victim(s) is a primary indicator of bias motivation. These perceptions are based on the victim’s own experience with prejudice, the circumstances of the attack, their identification of the attackers and many other factors. Sometimes, witnesses’ perceptions can also provide strong indicators of the apparent motive of the perpetrator.

In some OSCE countries, such as Canada and the United Kingdom, any reported crime which a victim, witness or police officer believes to have been hate motivated must be recorded and investigated as a potential hate crime.

The Conduct of the Offender

Perpetrators of hate crimes frequently make their prejudices clear before, during or after the act. The crucial evidence in most hate crimes consists of the words or symbols used by the perpetrators themselves. Those who commit hate crimes generally want to send a message to their victims and to others and these messages, from shouted epithets to graffiti, are powerful evidence of motivation.

The Characteristics of the Victim and the Perpetrator

Although hate crimes are most commonly thought of as involving attacks on members of minorities, this is not always the case. Depending on local circumstances, some hate crimes involve minority-upon-minority attacks, and sometimes minority on majority — this usually happens in places where members of a minority in a larger territory are the majority locally. Some circumstances that may be indicative of a hate crime include:

•• The “race”, religion, ethnicity/national origin, disability status, gender, or sexual orientation of the victim differs from that of the offender;

•• The victim is a member of a group that is overwhelmingly outnumbered by members of another group in the area where the incident occurred;

•• The victim is a member of a community that is concentrated within particular areas and was attacked upon leaving that area;

•• The incident occurred during an incursion by members of a majority group into an area that is predominately populated by members of minorities (this is a pattern reflecting the historical experience of pogroms, in which attacks were carried out on a minority population that was largely confined to a particular district neighbourhood);

•• The victim is a member of a minority who is attacked by a group from members of a different population group; and

•• There is historical animosity between the group of which the victim is a member and that of the offender.

Characteristics of a victim that may be indicators of hate crime include:

•• The victim is identifiable as “different” from the attackers and, often, from the majority community, by such factors as appearance, dress, language or religion;

•• The victim is a prominent figure, such as a religious leader, rights activist or public spokesperson, in a community that has faced ongoing discrimination; and

•• The victim was in the company of or married to a member of a minority group.

The characteristics, behavior and background of alleged offenders can also yield several potential indicators of hate motivation. For example:

•• Statements, gestures or other behavior before, during or after the incident displaying prejudice or bias against the group or community to which the target or victim belongs;

•• Clothing, tattoos or insignia representative of particular extremist movements, e.g., the use of swastikas or other Nazi insignia or paramilitary style uniforms;

•• The offender’s behavior (such as making Nazi salutes or attending rallies or protests organized by hate groups) suggests possible membership in a hate organization; and

•• The offender has a history of previous crimes with a similar modus operandi and involving other victims from the same minority group or other minority groups

...

Previous Hate Crimes or Incident

Other indicators of hate crimes include:

•• Previous similar incidents have occurred in the same area in which members of the same group were targeted;

•• The victim or victims had received previous harassing or threatening mail or telephone calls based on membership in their group; and

•• A previous incident or crime was reported that may have sparked a retaliatory hate crime against members of the group presumed responsible.

Mixed Motives

In investigating hate-motivated incidents and crimes, it is important to take into account all possible motives. For example, an incident in which a person is singled out for attack because of his or her identity may still be a hate crime even if the person is also robbed in the course of the incident. A question will arise as to whether the crime was motivated in whole or in part by prejudice and hatred; in some countries, if there is any mixed motive it will not be treated as a hate crime.

In many reported cases, individuals who have been targeted for attacks because of prejudice and hatred have also been victimized in other ways. The fact that they also had items of value stolen in the course of these attacks – a cell phone or money – is sometimes used to argue that the incident was not a hate crime. An important consideration is whether the particular individual was selected as a target because he or she was identified as a member of a particular ethnic, religious or other group.”

22. The Report of the European Commission against Racism and Intolerance covering the fifth monitoring cycle, issued on the 19 March 2015, contains the following passages:

3. Racist and homo/transphobic violence

“53. Racist and homo/transphobic violence fall under Criminal Code Article 216 (violence towards members of a community). According to information provided by the authorities, between 2009 and 2013, there were 191 reported cases of alleged hate motivated violence; 94 of these resulted in convictions with 33 prison sentences handed out. The authorities informed ECRI that 54% of the victims of these offences were Roma, 8.5% were Jews and 17% involved violence against the Hungarian majority...

54. Racist violence against Roma has been described as one of the most important problems faced by Hungary today. This is committed both by extremist groups and by individuals motivated by racial hatred. Between January 2008 and September 2012, there were 61 separate attacks against Roma and/or their property, with the use of Molotov cocktails, hand grenades and guns. The attacks took nine lives, including two minors and left dozens injured.”

23. Relevant extracts from the thematic situation report of the European Union Fundamental Rights Agency (“FRA”) entitled “Racism, discrimination, intolerance, and extremism: learning from experiences in Greece and Hungary” read as follows:

“During FRA’s meetings in Hungary, concerns were raised about how the police handle cases involving anti-Roma bias motivation. NEKI informed FRA, for example, that in an incident in May 2012 in Nagykanizsa, anti-Roma graffiti was recorded by the police merely as property damage, while the bias motivation was not taken into account. NEKI filed a complaint with the police, arguing that the incident should be prosecuted as a crime against the community. The police then investigated the incident as such, but as no offenders were found, the case was suspended.

A number of possible explanations were advanced by several of FRA’s interlocutors as to why bias motivations are often overlooked by the police. Among these, the latent climate of intolerance and prejudice that also exists within the police force was mentioned.

Another contributing factor could be that proving hate crime is more complex, resource intensive and time consuming than proving other types of crime. Police officers are often focused on closing cases quickly rather than on investing considerable resources in identifying bias motivations.

Recognising bias motivation requires special knowledge and training, which police officers do not always have, as FRA learned from meetings with the police.”

24. Relevant extracts from the Report by Nils Muižnieks, Council of Europe Commissioner for Human Rights, following his visit to Hungary from 1 to 4 July 2014, read as follows:

“Despite these positive steps, the Hungarian authorities have often been criticised for failing to identify and respond effectively to hate crimes, including by not investigating possible racial motivation. For the year 2013, the Hungarian authorities indicated that 48 cases of hate crimes (including cases of hate speech) were reported and 30 were prosecuted. This represents an increase in the number of such crimes reported from the 2009 figures (when 15 cases were reported and 18 prosecuted). However, these figures correspond only to the tip of the iceberg as it is generally agreed that the majority of hate crimes are not recorded as such by the police or are not even reported to the police, partly due to the lack of trust in this institution among members of minority groups. Among the reasons behind underqualification (the prosecution of a crime motivated by hate as a less severe crime) brought to the attention of the Commissioner feature: the lack of specialised guidelines and training for law enforcement officials; the workload and turnover of the few existing specialised hate crime police officers; and the underuse of available means to investigate hate crimes. It also appears that under pressure to deliver results, some public prosecutors may prefer pressing charges in respect of basic crimes as they are easier to substantiate. As concerns more specifically crimes committed by extremist groups, the need for a better co-operation between the police and the intelligence services has also been stressed. Finally, victims of hate crimes do not receive all the necessary and specialised legal and psychological support they need notably due to deficiencies in the public system of support for victims of crime.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION

25. The applicant complained that the Hungarian authorities had failed in their obligation to conduct an effective investigation into the racist attack which he had suffered, and in particular that they had not taken sufficient action to establish a possible racist motive for the assault. He relied on Articles 3 and 14 of the Convention, which read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

26. The Government contested the applicant’s allegations.

A. Admissibility

27. The Government requested the Court to declare the application inadmissible for failure to exhaust domestic remedies. Relying on the Court’s decision in Horváth and Vadászi v. Hungary ((dec.), no. 2351/06, 9 November 2010), they submitted that the applicant should have made use of substitute private prosecution under section 199(2) of the Code of Criminal Procedure.

28. The applicant submitted that in the case of Borbála Kiss v. Hungary (no. 59214/11, 26 June 2012), the Government had argued that Ms Kiss had failed to exhaust domestic remedies by not availing herself of an ordinary remedy, namely substitute private prosecution under section 199 (2) of the Code of Criminal Procedure Criminal Procedure, seeking the pursuit of discontinued criminal proceedings, but that objection had been dismissed by the Court.

In the applicant’s submission, substitute private prosecution had no prospect of success either in his case or in general, given the financial implications and the difficulties in taking supplementary investigative measures. The applicant further pointed out that in the case of Horváth and Vadászi (cited above) the Court had not examined the effectiveness of substitute private prosecution.

29. The third-party intervener, the European Roma Rights Centre, submitted that Roma persons could not be expected to pursue substitute private prosecution in cases involving failures by domestic authorities to investigate hate crimes. In its view, the requirement for them to institute substitute private prosecution would give the impression that public authorities have a lesser duty to investigate hate crimes. Furthermore, it would be particularly unfair to require a member of a disadvantaged group to carry out investigative activities. Finally, the third-party intervener considered that if the failure to conduct effective investigations was due to institutional racism, then to require Roma victims to pursue substitute private prosecution would expose them to the consequences of challenging an entrenched aspect of anti-Gypsism.

30. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. Where there is a choice of remedies open to an applicant, Article 35 must be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see, inter alia, Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000; and Krumpel and Krumpelova v. Slovakia, no. 56195/00, § 43, 5 July 2005). Indeed, where an applicant has a choice of remedies and their comparative effectiveness is not obvious, the Court tends to interpret the requirement of exhaustion of domestic remedies in the applicant’s favour (see Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, § 110, ECHR 2008 (extracts), and the cases cited therein). Moreover, an applicant who has used a remedy which is apparently effective and sufficient cannot be required also to have tried others that were also available but probably no more likely to be successful (see Ivan Vasilev v. Bulgaria, no. 48130/99, § 56, 12 April 2007 and the cases cited therein).

31. In the instant case, the applicant lodged a criminal complaint against Mr E.D. on charges of “violence against a member of group”. The ensuing proceedings were capable of leading to the identification and, if appropriate, punishment of those responsible.

32. In the Court’s view, by virtue of this remedy the State was afforded an opportunity to put matters right. The applicant must therefore be regarded as having brought the substance of his complaint to the notice of the national authorities and as having sought redress through the national channels for his complaint. The applicant was thus not required in addition to pursue the matter by way of substitute private prosecution concerning the same event, which would have had the same objective as his criminal complaint (see, mutatis mutandis, Borbála Kiss v. Hungary, cited above, § 26; and Matko v. Slovenia, no. 43393/98, § 95, 2 November 2006). In any case, the applicant complained of the alleged ineffectiveness of the investigation conducted by the authorities rather than about the absence of prosecution as such.

33. As to the Government’s reference to the case of Horváth and Vadászi, the Court considers that its conclusions cannot be transferred to the present situation, since in that case the applicants did not argue their claim of racial discrimination in the private prosecution whose effectiveness in respect of such complaints could not therefore be examined.

34. It follows that the Government’s preliminary objection as to non-exhaustion of domestic remedies must be dismissed.

35. Furthermore, the Government argued that Mr E.D.’s conviction of disorderly conduct had deprived the applicant of his victim status.

36. The applicant disputed this view submitting that the offence of which Mr E.D. was convicted had nothing to do with his grievance consisting of a racially motivated attack.

37. The Court observes that the investigation into disorderly conduct did not in any way address the applicant’s allegation of racially biased ill-treatment. Indeed, the hypothesis of the offence of disorderly conduct in section 339 of the Criminal Code (see paragraph 19 above) does not contain any element capable of covering a complaint of racially motivated attack.

In these circumstances the Court considers that this conviction was not susceptible to redressing the applicant’s complaint under Article 3 of the Convention, and did not deprive the applicant of his victim status. The application therefore cannot be rejected as incompatible ratione personae with the provisions of the Convention.

38. The Government lastly submitted that the application was incompatible ratione materiae with the provisions of the Convention, since the impugned treatment did not reach the minimum threshold of severity required for Article 3 to come into play. In their view, this was illustrated by the fact that the applicant did not press private charges of bodily assault or infringement of honour.

39. The applicant contested this view saying that the reason for the non-pursuit of such private charges was his loss of trust in the judicial system, rather than any insignificance of the attack on him.

40. The Court considers that this issue is closely linked to the merits of the applicant’s Article 3 complaint. Therefore it is necessary to join the Government’s objection to the merits of that question.

41. The Court further finds that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

42. The applicant maintained that the attack on him had resulted from the fact that he was of Roma origin, and that the authorities were reluctant properly to investigate this. He noted that the Public Prosecutor’s Office had dismissed his criminal complaint on the ground that there was no evidence to establish Mr E.D.’s criminal responsibility for “violence against a member of a group”. He contended that the racist statements of the perpetrator were not given due consideration in order to establish his potentially biased motives. He further submitted that the Prosecutor’s Office should have assessed whether other indicators of racist motives could be identified, including Mr E.D.’s affiliation with anti-Roma ideologies or groups, evidenced for example by his choice of music and books.

Moreover, the applicant contended that the domestic authorities had failed to take all the necessary measures to identify further witnesses who could have given an account of the fight between him and Mr E.D. He also pointed out that the Prosecutor’s Office had dismissed his request for further investigative measures, including a confrontation between him and Mr E.D.

(b) The Government

43. The Government stressed that there had been an investigation into the applicant’s allegations of an attack on him and the Public Prosecutor’s Office had established the relevant facts of the case, including the potentially racist motives of the perpetrator. The investigation authorities had heard witness testimonies from the applicant and his girlfriend, as well as the police officers who had arrived at the scene.

In so far as any racial motive might have been at the heart of the incident, the Government considered that the investigation had adequately focused on the allegations to that effect. In that context they contested the argument that any criminal offence committed against a member of a minority should be considered as one based on racist bias, since such incidents could have other motives too. They also pointed out that the domestic authorities had discontinued the investigation into “violence against a member of a group”, since the racist motives of the perpetrator, and the fact that the reason for the assault was the applicant’s Roma origin itself, could not be established beyond reasonable doubt.

(c) The third party

44. The European Roma Rights Centre viewed the issue in the present case through the lens of “anti-Gypsism” and maintained that there was a rise in anti-Roma rhetoric, racism and physical violence against the Roma in Hungary. It pointed to the reports of the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance, of Amnesty International and of the EU Fundamental Rights Agency, all evidencing patterns of anti-Roma attacks, including harassment, assault, or threats, and the growth of paramilitary organisations with racist platforms.

45. It also submitted that the general situation in Hungary showed that there was an institutional racism against Roma within the State bodies, evidenced by the “failure of the authorities to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin”. It relied on a thematic situation report of the EU Fundamental Rights Agency (entitled Racism, discrimination, intolerance and extremism: learning from experiences in Greece and Hungary) which showed that there was a lack of effective implementation of the laws for investigating and prosecuting racially biased crimes. It also pointed out that the report on the visit of the Council of Europe Commissioner for Human Rights to Hungary from 1 to 4 July 2014 expressed concerns about the Hungarian authorities’ failure to identify and respond effectively to hate crimes.

46. It further argued that vulnerable victims alleging racially-motivated violence were unlikely to prove beyond reasonable doubt that they were subjected to discrimination, especially when they were also victims of a failure on the part of the domestic authorities to carry out an effective investigation. It maintained that the Court’s analysis under Article 14 read in conjunction with the procedural limb of Article 2 or Article 3 (see, for example, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, ECHR 2005‑VII; and Šečić v. Croatia, no. 40116/02, 31 May 2007) was limited in that it had not addressed the question whether the failure to carry out an effective investigation in general had been a result of institutional racism. It invited the Court to find that the failures in the overall investigation into hate crimes were due to discrimination, depriving the Roma of access to the evidence needed to prove a violation of Article 14 read in conjunction with the procedural limb of Article 3.

2. The Court’s assessment

(a) General principles

47. The Court reiterates that in order to fall within the scope of Article 3, ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative by definition, and depends on all the circumstances of the case, including the duration of the ill-treatment, its physical and mental effects and, in some cases, the victim’s sex, age and state of health. Further factors to be taken into account include the purpose of the ill-treatment and the underlying intention or motivation (see, for example, El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 196, ECHR 2012). The Court has considered some types of treatment “inhuman”, particularly where it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV).

48. Even where the victim did not suffer serious or lasting physical injuries, the Court has held that corporal punishment inflicted on an adolescent should be described as “degrading” in so far as it constituted an assault on “precisely that which it is one of the main purposes of Article 3 to protect, namely a person’s dignity and physical integrity” (see Tyrer v. United Kingdom, 25 April 1978, § 33, Series A no. 26). By the same token, in a case concerning harassment of a person suffering from physical and mental disabilities, the Court ruled that the feelings of fear and helplessness caused by the ill-treatment were sufficiently serious to attain the level of severity required to fall within the scope of Article 3 of the Convention, even though the applicant had only suffered physical injuries on one occasion (see Đorđević v. Croatia, no. 41526/10, § 96, ECHR 2012). The Court has on several occasions examined from the angle of Article 3 situations in which the applicants had not suffered any physical injuries (see, for example, Gäfgen v. Germany [GC], no. 22978/05, § 131, ECHR 2010, concerning threats of torture; and Kurt v. Turkey, 25 May 1998, §§ 133-34, Reports of Judgments and Decisions 1998-III, relating to the disappearance of a relative).

49. Furthermore, the European Commission on Human Rights accepted in the context of acts attributable to State officials that discrimination based on race could, in certain circumstances, of itself amount to “degrading treatment” within the meaning of Article 3 (see Horváth and Vadászi, cited above; and East African Asians v. United Kingdom, nos. 4626/70 and others, Commission report of 14 December 1973, Decisions and Reports 78, pp. 57 and 62, §§ 196 and 207). Discriminatory remarks and racist insults must in any event be considered as an aggravating factor when considering a given instance of ill-treatment in the light of Article 3 (see Moldovan and Others v. Romania (no. 2), nos. 41138/98 and 64320/01, § 111, ECHR 2005-VII (extracts); and B.S. v. Spain, no. 47159/08, § 41, 24 July 2012). This approach was confirmed in respect of treatment attributable to private individuals (see Identoba and Others v. Georgia, no. 73235/12, § 65, 12 May 2015; Abdu v. Bulgaria, no. 26827/08, §§ 23-24, 11 March 2014; and Koky and Others v. Slovakia, no. 13624/03, §§ 223-225, 12 June 2012).

50. The Court moreover reiterates that the obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires them to take steps to ensure that individuals within their jurisdiction are not subjected to ill-treatment, even administered by private individuals (see M.C. v. Bulgaria, no. 39272/98, § 149, ECHR 2003-XII).

51. Where an individual claims on arguable grounds to have suffered acts contrary to Article 3, that Article requires the national authorities to conduct an effective official investigation to establish the facts of the case and identify and punish those responsible. The Court has held that the foregoing is necessarily true also in cases where the treatment contrary to Article 3 of the Convention was inflicted by private individuals (see Valiulienė v. Lithuania, no. 33234/07, § 74, 26 March 2013; and Šečić v. Croatia, no. 40116/02, § 67, 31 May 2007)

For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means; the authorities must have taken all reasonable steps available to them to secure the evidence concerning the incident (see Milanović v. Serbia, no. 44614/07, § 86, 14 December 2010).

52. When investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute. The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of a racially induced violence (see, Bekos and Koutropoulos v. Greece, no. 15250/02, § 69, ECHR 2005‑XIII (extracts)).Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts which are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005‑VII). The Court also reiterates the particular requirement for an investigation into an attack with racial overtones to be pursued with vigour and impartiality, having regard to the need to continuously reassert society’s condemnation of racism in order to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence (see Amadayev v. Russia, no. 18114/06, § 81, 3 July 2014).

53. Furthermore, the Court has noted in previous cases that as a result of their turbulent history and constant uprooting, the Roma have become a specific type of disadvantaged and vulnerable minority. They therefore require special protection (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 182, ECHR 2007‑IV). The Court considers that when it comes to offences committed to the detriment of members of particularly vulnerable groups, vigorous investigation is required.

54. The Court considers that the obligation on the authorities to seek a possible link between racist attitudes and a given act of violence is part of the responsibility incumbent on States under Article 14 of the Convention taken in conjunction with Article 3, but it is also an aspect of the procedural obligations flowing from Article 3 of the Convention. Owing to the interplay of the two provisions, issues such as those raised by the present case may fall to be examined under one of the two provisions only, with no separate issue arising under the other, or may require examination under both Articles. This is a question to be decided in each case depending on the facts and the nature of the allegations made (see Abdu v. Bulgaria, cited above, § 31; B.S. v. Spain, no. 47159/08, §§ 59‑63, 24 July 2012; Bekos and Koutropoulos, cited above, § 70).

55. In the present case, in view of the allegations made by the applicant to the effect that the ineffectiveness of the investigation stems precisely from the fact that the authorities insufficiently investigated the racist aspects of the acts of violence, the Court considers that the complaint should be considered from the angle of Article 14 read in conjunction with Article 3 of the Convention.

(b) Application of those principles in the present case

(i) Whether the attack on the applicant reached the minimum threshold of severity

56. In the present case the applicant was involved in a fight with a young man who, according to the applicant, violently attacked him. The medical report issued following the fight specified that he had sustained bruises on his chest, back, neck and face (see paragraph 9 above). These bodily injuries were aggravated by the perceived racist motive for the violence perpetrated: the applicant submitted that before the fight he had been the target of racist insults from three other men and the perpetrator himself.

57. The Court considers that in the light of these factors – and in particular of the potential infringement of human dignity represented by the racial motive, if any, for the violence – the treatment to which the applicant was subjected falls within the scope of Article 3 of the Convention (see Abdu, cited above, § 24). The Government’s related objection of incompatibility ratione materiae (see paragraph 38 above) must therefore be dismissed.

(ii) Whether an effective investigation was conducted into the motive behind incident

58. In the present case, the applicant lodged a criminal report with the prosecutor’s office, bringing the alleged racial motive of the attack to the attention of the authorities. In pursuit of his complaint, the prosecutor opened an investigation into the offence of violence against a member of a group within the meaning of section 174/B of the Criminal Code. In view of the constitutive elements of its hypothesis (see paragraph 19 above), the Court is satisfied that an investigation into this offence was in principle capable of revealing the racist motive behind the incident, if any.

It remains to be ascertained whether the investigation undertaken was adequate, that is, sufficiently thorough, for the purposes of Article 3.

59. The Court recalls in this connection that the lack of conclusions arising from any given investigation does not, by itself, mean that it was ineffective: an obligation to investigate “is not an obligation of result, but of means” (see Milić and Nikezić v. Montenegro, nos. 54999/10 and 10609/11, § 98, 28 April 2015).

60. The Court notes at the outset that the authorities investigating the incident between the applicant and Mr E.D. had before them the statements of the applicant and Ms D.L., who both maintained that before the fight Mr E.D. had called the applicant a gypsy.

61. As the Court has previously held in the Nachova case concerning statements uttered by law enforcement agents in connection with an operation involving force against persons from an ethnic or other minority, any evidence of racist verbal abuse is highly relevant to the question whether or not unlawful, hatred-induced violence has taken place. Where such evidence comes to light in the investigation, it must be verified and – if confirmed – a thorough examination of all the facts should be undertaken in order to uncover any possible racist motives (see Nachova, cited above, § 164).

Therefore, the impugned utterance, seen against the background of documented existence of prejudice and hostility against the Roma, called for verification as to the motives of the perpetrator, namely, if there were reasons to believe that Mr E.D.’s conduct constituted a hate crime (see paragraph 21 above).

62. The Court observes that under section 174/B of the Criminal Code, as in force at the material time, violence committed against others for their connection with a particular group was a criminal offence punishable by up to three years of imprisonment. Therefore, the relevant provision prohibited the violence and verbal abuse complained of by the applicant. Investigation was then warranted as to whether the offender had targeted an individual because of his belonging to one of the protected groups. Indeed, the domestic authorities noted that the applicant, a person of Roma origin, had been exposed to violence accompanied by a racist insult and that the crime might have been motivated by bias, and they took steps to establish the motives of Mr E.D.

63. Thus, the authorities questioned Mr E.D. about any possible racist background for his acts, albeit in the context of the parallel criminal investigation into the offence of disorderly conduct. His statements were included as documentary evidence in the criminal file concerning the offence of violence against a member of a group.

64. In the absence of an admission by Mr E.D. as to the presence of racist motives, the investigation authorities examined whether any such motives could be inferred from the words, actions and circumstances surrounding the incident. In particular, they took into consideration the witness testimonies of the applicant and his girlfriend about Mr E.D.’s racist statements before the fight. To resolve the contradictions between these testimonies and those of Mr E.D., the investigation authorities questioned, in a targeted way, the other witnesses, that is, the two police officers, about any exchanges they might have heard before or during the fight between the applicant and the perpetrator. The officers’ testimonies were not conclusive, since they arrived at the scene after the fight had been over. Furthermore, the identities of the applicant’s acquaintances, whose intervention ended the clash, remained unknown to the Public Prosecutor throughout the investigation. The Public Prosecutor decided not to hold a confrontation between the applicant and Mr E.D. only because it was considered to be devoid of any prospect of success.

65. In any case, the Csongrád County Regional Public Prosecutor’s Office appears to have accepted the applicant’s and Ms D.L.’s version of the events, in particular their account of the discriminatory statements made by Mr E.D. (see paragraph 17 above). Even against this background, the Prosecutor’s Office felt unable to determine whether the applicant’s Roma origin had been a relevant factor in the incident. It further noted that it was impossible to establish who had started to fight, especially since Mr E.D. was about to leave the scene when the altercation started.

66. The investigation authorities additionally examined whether any inference could be drawn from any other circumstantial evidence. They enquired into Mr E.D.’s comments posted on a social network in order to verify his affiliation with racist ideology and questioned him about the meaning of his posts (see paragraph 14 above). Their ensuing conclusion was that because the posts only revealed that Mr E.D. had insulted an unnamed and unidentifiable person of Roma origin the night before, it could not be established unequivocally and beyond doubt, either from the post or from the subsequent messages, that the insult had taken place because of the victim’s Roma origin. The authorities observed that the incident could have had other motives than racial and were satisfied that although there was a likelihood of racist motives, this could not be established beyond doubt so as to warrant Mr E.D.’s indictment.

67. The Court reiterates that its role is not to rule on the application of domestic law or adjudicate on the individual guilt of persons charged with offences, but to review whether and to what extent the competent authorities, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by the procedural obligations of the Convention (see Abdu, cited above, § 33).

68. The Court notes that the prosecuting authorities enquired into the allegations made by the applicant as to the racist motives of Mr E.D. and assessed a number of factors brought up by the applicant in substantiation of his claims, including the perpetrator’s biased utterances especially after the fight. The Court is satisfied that they did not treat the case in the same way as one which had no racial overtones.

69. The Court further observes that the authorities’ refusal to indict Mr E.D. was based on the argument that his racist motives could not be established “unequivocally and beyond doubt”. In particular, the reasoning went on to say that, first, it was impossible to establish how exactly the fight had started, and that, given certain elements (see paragraph 15 above), it could have had other motives than racial hatred. The Government in their submissions endorsed this view (see paragraph above 43 above). Second, for the authorities, Mr E.D.’s posts in social media following the incident, although mentioning the victim’s Roma origin, could not be linked with certainty to the altercation with the applicant and shed no light on his motives.

70. In regard to the first consideration, the Court takes the view that not only acts based solely on a victim’s characteristic can be classified as hate crimes. For the Court, perpetrators may have mixed motives, being influenced by situational factors equally or stronger than by their biased attitude towards the group the victim belongs to. Therefore, it finds it difficult to share the prosecution’s concern about proving that the insult was “precisely” due to the applicant being a Roma.

71. Concerning the second element, the Court notes that Mr E.D. specifically mentioned in the social media posts the Roma origin of the victim and the three men who had helped the person get away from the situation (see paragraph 11 above), which corresponded to the applicant’s account of the incident in which he was involved. Moreover, in his testimony given after the incident, Mr E.D. went back on what he had stated in this post, confirming that it was related to the incident with the applicant, but denying that he had kicked the victim’s head, making reference to the not-so-severe injuries sustained by the applicant.

72. The prosecuting authorities did not explain why the content of the posts and the applicant’s subsequent testimony could not be unequivocally linked to the impugned events and why Mr E.D.’s motives for the attack on the applicant could not be validly deduced from those posts.

73. In this connection the Court finds it material, in addition to the encouraging comments posted by Mr E.D.’s acquaintances, that one of his posts pointed on the Internet to a film scene containing an overly intolerant and racist message and widely known as such (see paragraph 11 above). The prosecution failed to give any reason why this could not be regarded as an evidence of racially biased motives, especially if viewed together with Mr E.D.’s related comment, according to which the list of the types of people loathed by the character speaking in the clip could be completed with “some other types of rubbish living among us” (see paragraph 11 as well as paragraph 21 above on the Conduct of the Offender in the OSCE text).

74. Unimpressed by these elements, the prosecution concluded that Mr E.D.’s criminal responsibility for violence against a member of a group could not be established “beyond any doubt” and discontinued the case, without issuing an indictment.

75. Aware of its subsidiary role, the Court is mindful of it being prevented from substituting its own assessment of the facts for that of the national authorities. Nevertheless, it cannot but note that the prosecuting authorities’ insistence on identifying an exclusive racist motive, their reluctance to link Mr E.D.’s posts to the incident despite remarkable concordances and, lastly, their failure to identify the racist motive in the face of powerful hate crime indicators such as the posts resulted from a manifestly unreasonable assessment of the circumstances of the case (see paragraph 23 above).

This impaired the adequacy of the investigation to an extent that is irreconcilable with the State’s obligation in this field to conduct vigorous investigations (see Milić and Nikezić¸ cited above, § 99).

76. The combined effect of the above considerations is such as to amount to a violation of Article 14 read in conjunction with Article 3 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

77. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

78. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.

79. The Government considered this claim to be excessive.

80. The Court considers that the applicant must have suffered some non-pecuniary damage on account of the violation found and awards him the full sum claimed.

B. Costs and expenses

81. The applicant did not make a costs claim. Consequently, no award is made under this head.

C. Default interest

82. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT,

1. Joins, unanimously, the Government’s preliminary objection of incompatibility ratione materiae with the provisions of the Convention to the merits and dismisses it;

2. Declares, unanimously, the application admissible;

3. Holds, by six votes to one, that there has been violation of Article 14 read in conjunction with Article 3 of the Convention;

4. Holds, by six votes to one,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 20 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithIşıl Karakaş
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge J.F. Kjølbro is annexed to this judgment.

A.I.K.
S.H.N.

DISSENTING OPINION OF JUDGE KJØLBRO

1. I disagree with the majority that there has been a violation of Article 14 read in conjunction with Article 3 of the Convention. In other words, I disagree that the State has failed to fulfil its positive obligation to conduct an effective investigation into the incident of allegedly racially motivated violence.

2. It is undisputed that a violent clash took place between the applicant and a private person (Mr E.D.). The applicant lodged a criminal complaint and brought the alleged racial motive of the perpetrator to the attention of the prosecutor. The prosecutor initiated a criminal investigation into the offence of “violence against a member of a group” (Section 174/B of the Criminal Code) and investigated into the alleged racial motives for the attack. Therefore, the question is not whether the prosecutor investigated into the allegedly racially motivated attack, but if the investigation into the alleged racist motives was effective as required by Article 3 of the Convention.

3. An investigation was prompted immediately and completed expeditiously. The relevant evidence was gathered. Amongst other, the applicant and his girlfriend were heard as witnesses. So were the two police officers that arrived at the scene after the incident. An attempt was made to identify the three acquaintances of the applicant who had intervened after the incident. The alleged perpetrator was also questioned. Furthermore, the prosecutor had at his disposal the documents provided, including medical reports and prints of posts from a social network. The majority have not pointed to any lacking investigative measures or concreate shortcomings in the gathering of evidence that could justify finding the investigation ineffective.

4. In fact, the only basis for finding of a violation is the prosecutor’s assessment of the evidence and decision to discontinue the investigation. In the assessment of my colleagues, the prosecutor’s assessment “resulted from a manifestly unreasonable assessment of the circumstances of the case” (see paragraph 77 of the judgment). I firmly disagree with that statement.

5. It transpires clearly from the reasons given by the prosecutor that the decision to discontinue the investigation into the offence of “violence against a member of a group” was based on an assessment that the offence “cannot be proven sufficiently for establishing criminal responsibility” and that the “racist motive ... cannot be established beyond doubt ...” (see paragraph 17 of the judgment). In other words, the prosecutor was of the opinion, on the basis of an assessment of all the material, that the evidence was insufficient to secure a conviction of the alleged perpetrator.

6. The positive obligation to conduct an effective investigation is an obligation of means, not of result (Milić and Nikezić v. Montenegro, nos. 54999/10 and 10609/11, § 94, 28 April 2015), and it is not the task of the Court to assess the criminal responsibility of individuals (Avşar v. Turkey, no. 25657/94, § 284, ECHR 2001‑VII (extracts)). Furthermore, having regard to the presumption of innocence as guaranteed by Article 6 § 2 of the Convention as well as the well-established principle of objectivity in criminal law, the Convention cannot be interpreted as requiring the prosecutor to indict and press criminal charges against a person, if, in the assessment of the prosecutor and on the basis of a proper assessment of all the relevant evidence, no criminal offence has been committed, or the evidence is insufficient to secure a conviction. Therefore, in case the investigation performed at domestic level has been effective in the sense of gathering all the relevant evidence, the Court should accept the assessment of the evidence performed by the domestic authorities unless the assessment is arbitrary or manifestly unreasonable.

7. In my view, there is no basis for saying that the decision of the prosecutor to discontinue the investigation into “violence against a member of a group” was arbitrary or manifestly unreasonable or that it was not “based on an adequate assessment of all the relevant factual elements in the case” (Milić and Nikezić v. Montenegro, nos. 54999/10 and 10609/11, § 99, 28 April 2015).

8. In support of the conclusion that the prosecutor’s assessment “resulted from a manifestly unreasonable assessment of the circumstances of the case”, the majority mention three elements: (1) the prosecutor’s assessment of the racist motive (paragraph 72 of the judgment), (2) the significance of the perpetrator’s posts on the social network (paragraph 73-74) and (3) the importance of the perpetrators link to a film on a social network (paragraph 75 of the judgment).

9. Firstly, as regards the racist motive, it follows from Section 174/B of the Criminal Code that the prosecutor, in order to secure a conviction, has to prove beyond reasonable doubt that the violence was inflicted against the victim “because that other person belongs to a ... ethnic, racial ... group”. The prosecutor explained in the reasons given for his decision (paragraph 17 of the judgment) why it would not be possible to prove that the violence was inflicted “because of” the Roma origin of the applicant. In the assessment of the prosecutor, the offence “cannot be proven sufficiently for establishing criminal responsibility” and that the “racist motive ... cannot be established beyond doubt ...” I fail to see how the majority’s reference to the sufficiency of “mixed motives” has any bearing on the assessment of the case. The prosecutor assessed that he could not prove the link between a racist motive and the violence. The prosecutor referred to the fact that the perpetrator “had intended to leave the scene and only turned back because of the victim’s reproach and that the only information about the start of the fight originates in the contradictory statements of the victim and [the perpetrator]”. My colleagues may disagree with that assessment, but there is insufficient basis for characterising the assessment as “arbitrary” or “manifestly unreasonable”.

10. Secondly, as regards the importance of the posts on the social network, my colleagues criticize the prosecutor for not having explained “why the content of the posts and the applicant’s subsequent testimony could not be unequivocally linked to the impugned events and why [the perpetrators] motives for the attack on the applicant could not be validly deduced from those posts” (see paragraph 73 of the judgment). However, my colleagues fail to recognize the difference between violence against a person who is of Roma origin, and violence against a person because of the persons Roma origin. In the first situation the ethnic origin of the victim is a statement of fact, in the other it is the cause of the violence. It transpires clearly from the reasoning of the decision that the prosecutor assessed that the posts were insufficient to prove that the incident took place “because of the victim’s Roma origin”. Again, my colleagues may disagree with that assessment, but there is insufficient basis for characterising the assessment as “arbitrary” or “manifestly unreasonable”.

11. Thirdly, as regards the link to the racist film in one of the posts of the perpetrator on the social network, my colleagues criticize the prosecutor for having “failed to give any reason why this cannot be regarded as an evidence of racially biased motives” (see paragraph 75 of the judgment). However, the prosecutor clearly stated that it could not be proven “either from the post or from the subsequent messages” that the incident took place “because of the victim’s Roma origin” (see paragraph 17 of the judgment). My colleagues fail to recognize that the fact that a person has expressed views that may be interpreted as racist does not imply that everything the person does is racially motivated. Again, my colleagues may disagree with that assessment, but there is insufficient basis for characterising the assessment as “arbitrary” or “manifestly unreasonable”.

12. In my view, the majority is acting as a fourth instance court substituting their own assessment of the evidence for that of the domestic authorities. The judgment can only be read as criticizing the prosecutor for not having indicted the perpetrator and brought the case before the criminal courts.

13. However, as already mentioned, the Convention cannot be interpreted as requiring the prosecutor to indict and press criminal charges against a person, if, in the assessment of the prosecutor and on the basis of a proper assessment of all the relevant evidence, no criminal offence has been committed, or the evidence is insufficient to secure a conviction. Furthermore, as already mentioned, there is no basis for saying that the decision of the prosecutor to discontinue the investigation into “violence against a member of a group” was arbitrary or manifestly unreasonable or that it was not “based on an adequate assessment of all the relevant factual elements in the case”.

14. I would like to underline another aspect. The applicant has complained of the alleged ineffectiveness of the investigation conducted by the authorities rather than about the absence of prosecution as such (see paragraph 32 of the judgment). My colleagues do not criticize the domestic investigation for being ineffective in the sense of not having secured all the relevant evidence, but like the applicant they are in fact criticizing the prosecutor’s assessment of the evidence. In this context it is important to notice that it was open to the applicant, if he was dissatisfied with the prosecutor’s assessment of the evidence, to institute subsidiary private prosecution (Section 199(2) of the Code of Criminal Procedure), had they wanted a court’s assessment of the facts of the case. This was not done. Rather, the applicant turned to the European Court of Human Rights that has now told the domestic prosecutor, albeit indirectly, that he should have indicted the perpetrator and brought the case before criminal courts, irrespective of the fact that the evidence, in the assessment of the prosecutor, was insufficient to secure a conviction, as the decision of the prosecutor, according to the majority, results from “a manifestly unreasonable assessment of the circumstances of the case”.

15. For the reasons mentioned, there has, in my view, been no violation of Article 14 read in conjunction with Article 3 of the Convention.

 

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