The European Court of Human Rights has given judgment in the case SABALIĆ v. CROATIA regarding Croatia’s procedural obligation to investigate and prosecute hate crimes motivated by sexual orientation appropriately.
ERA - LGBTI Equal Rights Association applauds the European Court of Human Rights' decision in the case SABALIĆ v. CROATIA to find that the domestic authorities had failed to adequately and effectively comply with their procedural obligation under Article 3 in conjunction with Article 14 of the Convention.
The applicant is a Croatian national who in January 2010 has been attacked in a night club by a man M.M., when she refused his advances, adding that she was a lesbian. The police failed to report the motive behind the attack. They instituted only minor offence proceedings for breach of public peace and order, in which the aggressor was convicted and given a fine of approximately 40 euros.
Ms Sabalić, who had not been informed of those proceedings, lodged a criminal complaint against M.M. before the State Attorney’s Office, alleging that she had been the victim of a violent hate crime and discrimination.
The State Attorney’s Office instituted a criminal investigation. Eventually, it rejected the criminal complaint in July 2011 because M.M. had already been prosecuted in the minor-offence proceedings and his criminal prosecution would therefore amount to double jeopardy. The domestic courts upheld this decision.
In a joint intervention, the AIRE Centre, ILGA-Europe, and the International Commission of Jurists submitted that the ECtHR should emphasise the extent of member states’ obligations to put in place effective, robust procedures to deter, detect, investigate, prosecute and punish hate crimes perpetrated because of the victim’s sexual orientation and/or gender identity.
“Member states are to be held accountable when they fail to combat impunity for hate crimes and fulfil their obligations towards the Convention. They must recognise hate crimes on the grounds of sexual orientation, gender identity or gender expression and adequately prosecute the perpetrators. We hope that this decision is a clear message to Croatia and the other member states from the region that the obstruction of justice will not be accepted and tolerated.” - Biljana Ginova, Advocacy Manager at ERA - LGBTI.
The ECtHR reiterated that States had a duty under the Convention to take all reasonable steps when investigating violent incidents to ascertain whether discrimination had played a role. That duty also involved identifying, and if appropriate, adequately punishing those responsible for the violence.
The ECtHR found that Croatia’s response to the attack through minor-offence proceedings had demonstrated that the State was not committed to full implementation of the Convention by failing to ensure that homophobic violence was in no way tolerated. Indeed, such a response had fostered a sense of impunity for acts of violent hate crime.
The ECtHR also noted that the domestic authorities had a chance to put the situation right, for instance, by annulling the unwarranted set of minor-offence proceedings, voiding their effects, then re-examining the case, but failed to do so.
In sum, the ECtHR found that by instituting the ineffective minor-offence proceedings and wrongly discontinuing the criminal proceedings on formal grounds, the domestic authorities had failed to adequately and effectively comply with their procedural obligation under Article 3 in conjunction with Article 14 of the Convention.