ECtHR: CASE OF BEUS v. CROATIA – No proper proceedings agains persons responible of hate crimes agains gay victims constitute violation of Articles 14 and 3 ECHR

28.  The relevant principles concerning the adequacy of the State’s procedural response to violent homophobic attacks have been summarised in Sabalić (cited above, §§ 63-70 and 90-98).

29.  In the present case, following the verbal and physical attack on the applicant on 10 May 2014, the police, who had immediately responded at the scene, established that the applicant had been subjected to threats and had sustained physical injuries as a result of a violent attack by several men uttering homophobic insults (see paragraph 5 above). These initial findings sufficed as prima facie indications of violence motivated or at least influenced by the applicant’s sexual orientation (compare Sabalić, cited above, § 105, and the cases cited therein). According to the Court’s case-law, this required the 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 (ibid.).

30.  The police then filed a complaint against the two suspects with the State Attorney’s Office for threatening the applicant, and another complaint with the Minor Offences Court for disturbing public order and peace. The State Attorney decided not to prosecute the suspects because T.B. and F.Z. had had alibis and the latter had been recognised with only 90% certainty by the applicant. Despite the fact that M.M. had no alibi and had been recognised with 90% certainty by the applicant and 100% certainty by his friend, the State Attorney considered the identification parade to be unreliable evidence and dismissed the criminal complaint against M.M., without explaining why no criminal proceedings had ever been instituted against him.

31.  On the other hand, the Minor Offences Court found M.M. guilty on the basis of the same evidence. It sentenced him to community service and ordered him to make an apology, while at the same time acquitting F.Z.

32.  Although it is not for the Court to address issues of domestic law concerning individual responsibility, the Court observes that the minor‑offence 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 (compare Sabalić, cited above, § 108, and the cases cited therein).

33.  Moreover, the Court notes that in the minor-offence proceedings M.M. was ordered to perform community service and to make an apology, a sentence which, it appears, was not enforced until more than two years after his conviction. In the Court’s view, such a sentence, despite M.M. being a minor at the relevant time, was manifestly disproportionate to the gravity of the ill-treatment suffered by the applicant (compare Identoba and Others v. Georgia, no. 73235/12, § 75, 12 May 2015, and Stoyanova v. Bulgaria, no. 56070/18, § 68, 14 June 2022).

34.  The Court further notes that M.M.’s conviction and his very lenient punishment in minor-offence proceedings was the only concrete result of the authorities’ efforts to identify the perpetrators of a number of attacks on the applicant over a period of two years. As regards the remaining incidents, the police were never able to identify any of the perpetrators. Although the State’s investigative obligation is one of means and not of result, the Court cannot but note the numerous flaws in their investigations, as identified in the Ombudsperson’s report (see paragraph 22 above), including the failure to take fingerprints, interview neighbours and obtain the personal information of the witness who wished to remain anonymous. As a consequence, the police responses to the applicant’s numerous complaints could be regarded as responses fostering a sense of impunity for the acts of harassment and violent hate crime to which the applicant was subjected at the hands of private individuals, rather than as a procedural mechanism showing that such acts could in no way be tolerated (compare Sabalić, cited above, § 111, and the cases cited therein).

35.  The foregoing is sufficient for the Court to conclude that there has been a violation of Article 14 in conjunction with Article 3 of the Convention under its procedural aspect in the present case.