New Judgment by the ECtHR: SABALIĆ v. CROATIA: Lesbian woman assaulted for refusing man’s advance: Man fined derisory fine of 40 EUR

http://hudoc.echr.coe.int/fre?i=001-207360 (14 January 2021)

5.  On 13 January 2010 the applicant was physically attacked in a nightclub in Zagreb where she was with several of her friends. The attack ceased only after one of the applicant’s friends, I.K., used her gas pistol to frighten off the attacker.

6.  At about 6.00 a.m. a local police station of the Zagreb Police Department (Policijska uprava zagrebačka, hereinafter: the “police”) was informed of the incident and two police officers immediately responded at the scene.

7.  The relevant part of the police report on the findings at the scene of the incident reads:

“When we came at the scene … we found Petra Sabalić …, I.K. …, I.D. …, K.F. …, E.N. … and A.B. … [personal details omitted].

By interviewing them and observing the scene of the incident we established that the above-mentioned persons had come to [the nightclub] at around 4.00 a.m., where they stayed for about one and a half hours. While they were in the nightclub [the applicant] was approached by an unidentified man who started flirting with her but she was constantly refusing him. After the nightclub closed they were all standing in front of it and the man continued pressing [the applicant] to be with him. When she said that she was a ‘lesbian’ he grabbed her with both of his arms and pushed her against a wall. He then started hitting her all over her body and when she fell to the ground he continued kicking her. …”  

68.  As a result of the attack the applicant sustained multiple physical injuries, including contusion on the head, a haematoma on the forehead, abrasions of the face, forehead and area around the lips, neck strain, contusion on the chest and abrasions of both palms and knees (see paragraph 10 above). These particular circumstances of the attack were later confirmed in the minor offences proceedings (see paragraphs 12 and 14 above) and they formed the essence of the applicant’s criminal complaint and the ensuing criminal investigation (see paragraphs 16 and 20 above).

69.  Furthermore, the Court notes that there is sufficient evidence before it to conclude that the attack against the applicant was influenced by her sexual orientation. This follows from the above-noted findings of the police, the applicant’s detailed account of the events in her criminal complaint lodged with the State Attorney’s Office (see paragraph 16 above), the applicant’s and her friends’ police interviews (see paragraphs 18-19 above), and the findings of the criminal investigation conducted by an investigating judge of the County Court (see paragraph 23 above).

70.  In light of the foregoing, the Court concludes that the treatment, convincingly described by the applicant, to which she was subjected and which was directed at her identity and undermined her integrity and dignity, must necessarily have aroused in her feelings of fear, anguish and insecurity reaching the requisite threshold of severity to fall under Article 3 of the Convention (compare Identoba and Others, cited above, § 71; M.C. and A.C., cited above, § 119; …

71.  The Court therefore rejects the Government’s objection and finds Article 3 of the Convention applicable to the applicant’s complaints.

105.  In these circumstances, the Court finds that already at the initial stages of the proceedings, immediately after the physical attack against the applicant had taken place, the domestic authorities were confronted with prima facie indications of violence motivated or at least influenced by the applicant’s sexual orientation (compare Šečić, cited above, § 69; Milanović, cited above, § 99; Abdu, cited above, § 35; and Begheluri, cited above, § 176). According to the Court’s case-law, this 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 (see paragraphs 94-95 above; see also S.M. v. Croatia, cited above, § 324).

107.  Instead of lodging a criminal complaint before the State Attorney’s Office concerning the hate motivated violent attack against the applicant or conducting any further actions to elucidate the possible hate crime element of the events, as required by the relevant instructions (see paragraph 46 above), the police instituted minor offences proceedings in the Minor Offences Court indicting M.M. on charges of breach of public peace and order. These proceedings ended with M.M.’s conviction for the minor offence and his punishment by a fine of approximately EUR 40 without addressing or taking into account the hate motive at all. As there was no appeal by M.M. or the police, and since the applicant was not informed of the proceedings, M.M.’s minor offences conviction became final (see paragraphs 13-15 above).

108.  Although it goes without saying that it is not for the Court to address such issues of domestic law concerning individual responsibility, that being a matter for assessment by the national courts, or to deliver guilty or not guilty verdicts in that regard, the Court observes that the minor offences proceedings did not in any manner address the hate crime element to the physical attack against the applicant nor was M.M. indicted or convicted of any charges related to violence motivated by discrimination …

109.  Moreover, the Court notes that in the minor offences proceedings M.M. was sentenced to a derisory fine of approximately EUR 40. While the Court acknowledges the role of the national courts to determine the appropriate sentence for an offender, its task is to ensure that a State’s obligation to protect the rights of those under its jurisdiction is adequately discharged, which means that it must retain its supervisory function and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed …

110.  The Court cannot therefore overlook the fact that M.M.’s sentence in the minor offences proceedings was manifestly disproportionate to the gravity of the ill-treatment suffered by the applicant (compare Identoba and Others, cited above, § 75). Indeed, this conclusion is confirmed by comparing the prescribed sanctions for the offences as subsequently classified by the State Attorney’s Office – which were publishable by imprisonment (see paragraphs 16, 20 and 32 above) – and the nature of the sanction actually imposed on M.M. in the minor offences proceedings. …

111.  In overall, the Court finds that such a response of the domestic authorities through the minor offences proceedings was not capable of demonstrating the State’s Convention commitment to ensuring that homophobic ill-treatment does 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 the minor offences proceedings against M.M. could be considered rather as a response that fosters 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 …

114.  In the Court’s view, both 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, amounted to “fundamental defects” in the proceedings under Article 4 § 2 of Protocol No. 7. In the present case the domestic authorities failed to remedy the impugned situation,although it could not be said that there were de jure obstacles to do so (see paragraph 99 above). In particular, they 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. The domestic authorities therefore failed to fulfil their duty to combat impunity of hate crimes in compliance with the Convention standards …

115.  In sum, in view of the above considerations, the Court finds that by instituting the ineffective minor offences proceedings and as a result erroneously discontinuing the criminal proceedings on formal grounds the domestic authorities 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 is contrary to their duty to combat impunity for hate crimes which are particularly destructive of fundamental human rights (see paragraph 95 above).

116.  There has therefore been a violation of Article 3 under its procedural aspect in conjunction with Article 14 of the Convention.