Sabalić v. Croatia

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 247

January 2021

Sabalić v. Croatia - 50231/13

Judgment 14.1.2021 [Section I]

Article 14

Discrimination

Conviction for minor offence and EUR 40 fine for violent homophobic attack, without investigating hate motives, and subsequent discontinuation of criminal proceedings on ne bis in idem grounds: violation

Facts – The applicant was physically attacked by a private individual (M.M.) after revealing her sexual orientation to him. She sustained minor physical injuries from the incident. The police subsequently brought successful minor offences proceedings against M.M. for breach of public peace and order. He was fined approximately EUR 40. After realising that the police had failed to institute a criminal investigation against M.M, the applicant lodged a criminal complaint with the State Attorney’s Office. It was rejected, on the ground that M.M. had already been prosecuted for minor offences proceedings and that his criminal prosecution would contravene the ne bis in idem principle.

Law – Article 14 (in conjunction with Article 3):

(a) Scope

The Court found that the most appropriate way to proceed with the applicant’s allegations – that the violence against her had had homophobic overtones which had not been properly addressed by the authorities – was to subject them to a simultaneous examination under Article 3 taken in conjunction with Article 14.

(b) The response of the domestic authorities

The domestic legal system had provided for criminal law mechanisms protecting individuals from hate motivated violence. However, the Court did not need to examine that framework further, since the applicant’s complaint was rather of a procedural nature.

The police had immediately responded at the scene and made initial findings, which presented prima facie indications of violence motivated or at least influenced by the applicant’s sexual orientation. These findings had never been put into doubt during the proceedings at the domestic level. According to the Court’s case-law, this had mandated for an effective application of domestic criminal-law mechanisms capable of elucidating the possible hate motive with homophobic overtones behind the violent incident and of identifying and, if appropriate, adequately punishing those responsible. According to the domestic procedures, the police had been required to lodge a criminal complaint with the State Attorney’s Office, which had been competent to conduct further official investigations into the indications of violent hate crime even in cases of only minor bodily injuries. Attempted grave bodily injury and violent behaviour and acts of discriminatory breach of human rights had required an ex officio investigation and prosecution even without a hate crime element. On the basis of these provisions, the State Attorney’s Office had instituted an official investigation before an investigating judge. There was therefore no doubt that, even in terms of the domestic law, the police had been under a duty to report the matter to the State Attorney’s Office, which, however, they had failed to do.

Instead, the police had instituted minor offences proceedings indicting M.M. on charges of breach of public peace and order. That had not in any manner addressed the hate crime element to the physical attack, nor had M.M been indicted or convicted of any charges related to violence motivated by discrimination. Moreover, he had been sentenced to a derisory fine of approximately EUR 40. The Court could not overlook the fact that the sentence had been manifestly disproportionate to the gravity of ill-treatment suffered by the applicant. That conclusion was confirmed by comparing it with the prescribed sanctions for the offences as subsequently classified by the State Attorney’s Office – which had been punishable by imprisonment.

Overall, the response of the domestic authorities through the minor offences proceedings had not been capable of demonstrating the State’s Convention commitment to ensuring that homophobic ill-treatment did not remain ignored by the relevant authorities and to providing effective protection against acts of ill-treatment motivated by the applicant’s sexual orientation. The sole recourse to those proceedings could be considered rather as a response that fostered a sense of impunity for the acts of violent hate crime, than as a procedural mechanism showing that such acts could in no way be tolerated.

The State Attorney’s Office and the criminal courts had found, on the basis of their interpretation of the Sergey Zolotukhin and Maresti case-law, that M.M.’s final conviction in the minor offences proceedings had created a formal impediment to his criminal prosecution for the violent hate crime on the grounds of the ne bis in idem principle. The Government had submitted that, given that it had been necessary to secure compliance with the principle, the domestic authorities had had a justified reason for not implementing the effective criminal-law mechanism.

However, the domestic authorities had themselves brought about the situation in which they, by unnecessarily instituting the ineffective minor offences proceedings, had undermined the possibility to put properly into practice the relevant provisions and requirements of the domestic criminal law.

Both the failure to investigate hate motives behind a violent attack and failure to take into consideration such motives in determining the punishment for violent hate crimes had amounted to “fundamental defects” in the proceedings under Article 4 § 2 of Protocol No. 7. The domestic authorities had failed to remedy the impugned situation, although it could not be said that there had been de jure obstacles to do so. In particular, they had failed to offer the defendant the appropriate redress, for instance, by terminating or annulling the unwarranted set of proceedings and effacing its effects, and to re-examine the case.

(d) Overall

By instituting the ineffective minor offences proceedings and, as a result, erroneously discontinuing the criminal proceedings on formal grounds, the domestic authorities had failed to discharge adequately and effectively their procedural obligation under the Convention concerning the violent attack against the applicant motivated by her sexual orientation. Such conduct of the authorities was contrary to their duty to combat impunity for hate crimes which are particularly destructive of fundamental rights.

Conclusion: violation (unanimously).

Article 41: EUR 10,000 in respect of non-pecuniary damage.

(See also Sergey Zolotukhin v. Russia [GC], 14939/03, 10 February 2009, Information Note 116; Maresti v. Croatia, 55759/07, 25 June 2009)

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