State protection measures against racist crimes and the role of the ECtHR in hate crimes
JUDGMENT
Škorjanec v. Croatia (no. 25536/14) 28-03-2017
SUMMARY
Inhuman and degrading treatment. Lack of adequate research. The applicant was walking with her partner in a market in Zagreb. Two men began to express various racist insults against them because of their roma origin. The perpetrators of the attack were convicted for their actions but were not prosecuted for committing a racist crime against the applicant. The authorities did not adequately assess the circumstances of the case by insisting that the applicant had no Roma origin without checking whether she was treated by the attackers as a Roma and without associating the racist motive of her assault and her relationship with her partner.
This has led to a reduction in the effectiveness of the procedural actions and moves of the domestic authorities regarding Mrs Škorjanec’s allegations. The ECtHR ruled that the national authorities had breached their obligations under the Convention when they rejected Ms Škorjanec’s complaint without further investigation. There has therefore been a violation of Article 3 in accordance with its procedural aspect, in conjunction with Article 14.
PROVISION
Article 3
PRINCIPAL FACTS
The applicant, Maja Škorjanec, is a Croatian national who was born in 1988 and lives in Zagreb. In June 2013, she was walking with her partner in a market in Zagreb. Two men started uttering various racial insults against Ms Škorjanec’s partner, on the grounds of his Roma origin. He was then chased by the two men, who caught him and beat him. Ms Škorjanec maintained that, when she went to her partner’s aid, she was pushed to the floor and kicked in the head.
The two assailants were prosecuted and convicted on charges of making serious threats against Ms Škorjanec’s partner and inflicting bodily harm on him, associated with a hate crime element.
However, the men were not charged for committing a racially motivated crime against Ms Škorjanec. The couple lodged a criminal complaint, where Ms Škorjanec claimed that she had also been a victim of a hate crime. However, the Zagreb Municipal State Attorney’s Office rejected it on the grounds that there was no indication that the men had attacked Ms Škorjanec because of hatred towards Roma, as she is not of Roma origin.
THE DECISION OF THE COURT
Article 3 (prohibition of inhuman or degrading treatment) in conjunction with Article 14 (prohibition of discrimination)
Convention principles
When investigating violent incidents triggered by suspected racist attitudes, State authorities are required to take all reasonable action to ascertain whether there were racist motives and whether
feelings of hatred or prejudice based on ethnicity played a role. Treating racially motivated violence on an equal footing with cases lacking any racist overtones would be tantamount to turning a blind eye to the specific nature of acts which are particularly destructive of fundamental human rights, and may constitute unjustified treatment irreconcilable with Article 14. In this connection, not only acts based solely on a victim’s characteristics can be classified as hate crimes. Article 14 also covers cases in which the adverse treatment of an individual relates to another person’s status or protected characteristics. Under Article 3 taken in conjunction with Article 14, the obligation on the authorities to seek a possible link between racist attitudes and a given act of violence concerns not only acts of violence based on a victim’s actual or perceived personal status or characteristics, but also acts of violence based on a victim’s actual or presumed association or affiliation with another person who actually or presumably possesses a particular status or protected characteristic.
Adequacy of domestic law.
The Croatian Criminal Code explicitly describes hate crime as an aggravating circumstance, both in relation to the particular offence of causing bodily injury, and for criminal acts in general.
Furthermore, it is sufficient under the Criminal Code for a hate crime to be committed on the grounds of or out of racial hatred, without requiring the victim to personally hold the protected
characteristic or status. The Croatian legal system therefore provided the applicant with adequate legal mechanisms to afford an acceptable level of protection in the circumstances.
Adequacy of the authorities’ actions in this case.
Whilst the appropriate legal provisions were in place for the recognition of the attack against Ms
Škorjanec as a suspected hate crime, the way in which the criminal-law mechanisms were implemented in practice was defective to the point of constituting a violation of the Convention. In the course of the initial investigation by police, Ms Škorjanec and her partner both gave statements suggesting that the former had fallen victim to a racially motivated attack due to the fact
that she had been in the company of the latter. Nevertheless, the authorities failed to properly consider the possibility that Ms Škorjanec had been the victim of a hate crime. The authorities also
refused to investigate whether a hate crime had been committed against her, after she had made specific allegations of racially motivated violence against her in her criminal complaint; and after
further information came to light in the course of the criminal proceedings against the attackers, suggesting that she had been the victim of racially motivated violence.
The Court reiterated its subsidiary role to that of the national courts, and that it is mindful that it is prevented from substituting its own assessment of the facts for that of the national authorities.
Nevertheless, the Court noted that the prosecuting authorities’ insistence on the fact that Ms Škorjanec herself was not of Roma origin and their failure to identify whether she was perceived by
the attackers as being of Roma origin herself, as well as their failure to take into account and establish the link between the racist motive for the attack and Ms Škorjanec’s association with her
partner, resulted in a deficient assessment of the circumstances of the case. That impaired the adequacy of the domestic authorities’ procedural response to Ms Škorjanec’s allegations to an extent that is irreconcilable with the State’s obligation of taking all reasonable steps to unmask the role of racist motives in the incident. The Court was forced to the conclusion that the
domestic authorities failed in their obligations under the Convention when rejecting Ms Škorjanec’s criminal complaint without conducting further investigation prior to their decision. There had
therefore been a violation of Article 3 under its procedural aspect in conjunction with Article 14.
Just satisfaction (Article 41)
The Court held that Croatia was to pay the applicant 12,500 euros (EUR) in respect of non-pecuniary
damage and EUR 2,200 in respect of costs and expenses.
