Published on 25 September 2023
FOURTH SECTION
Application no. 40801/22
X
against Serbia
lodged on 10 August 2022
communicated on 4 September 2023
SUBJECT MATTER OF THE CASE
The applicant is a member of the LGBTI community. In 2015 he alleges to have been verbally and physically assaulted by two men on the street. The police filed criminal complaints against the alleged perpetrators for violent behaviour. However, the relevant public prosecutor rejected those complaints in accordance with Article 283 of the Code of Criminal Procedure, each of the alleged perpetrators having instead been ordered to pay approximately 500 euros in Serbian dinars for humanitarian purposes.
On 27 January 2022 the Constitutional Court found a violation of the applicant’s rights under Article 3 of the Convention read in conjunction with Article 14 thereof, which decision was served on the applicant on 13 April 2022. The Constitutional Court held, in particular, that the prosecuting authorities had failed to properly investigate the existence of a possible homophobic motive for the attack when they had opted to reject the criminal complaints filed by the police. The Constitutional Court also awarded no compensation for any non-pecuniary damage suffered by the applicant.
Relying on Articles 3 and 14 of the Convention, the applicant complains about the lack of an effective official investigation into the alleged homophobic incident, as well as the fact that the Constitutional Court did not award him compensation for the violation suffered. The applicant furthermore complains, under Article 6 of the Convention, of the excessive length of proceedings before the Constitutional Court itself which lasted for 6 years and 4 months in all.
QUESTIONS TO THE PARTIES
1. Could the applicant still be considered as a victim of the alleged violation of Article 3 of the Convention, within the meaning of Article 34 thereof, in view of the Constitutional Court’s decision of 27 January 2022? In particular, could the acknowledgment of a breach of the applicant’s rights under the Convention, without compensation or, as alleged by the applicant, an effective official investigation into the incident as well as the motivation behind it, be considered sufficient to deprive him of his “victim status” (see, for example, Milovanović v. Serbia, no. 56065/10, § 96, 8 October 2019; see also, mutatis mutandis, Sabalić v. Croatia, no. 50231/13, § 114, 14 January 2021, and Jevtović v. Serbia, no. 29896/14, §§ 85 and 86, 3 December 2019)?
2. Should the answer to the above question be in the affirmative, have the respondent State’s authorities complied with their procedural obligation under Article 3 of the Convention, taken alone and/or in conjunction with Article 14 thereof, concerning the alleged discriminatory (homophobic) attack against the applicant (see, Sabalić, cited above, §§ 91-101, § 105, and § 114)?
3. Has the length of the proceedings before the Constitutional Court been excessive and, as such, in breach of the “reasonable time” requirement contained in Article 6 § 1 of the Convention (see Milovanović, cited above, §§ 87-90, and Grubić v. Croatia, no. 33602/17, §§ 34-41, 18 March 2021)?