Homophobic attack by a man against a woman who revealed that she was a lesbian. Imposition of a penalty of 40 euros against him! Condemnation and violation of the ECHR for ineffective punishment!
JUDGMENT
Sabalić v. Croatia 14.01.2021 (app. no. 50231/13)
SUMMARY
The case concerned Ms Sabalić’s allegation that the authorities’ response to a violent homophobic
attack against her had been inadequate. She had been attacked in a nightclub when she had refused
a man’s advances, disclosing to him that she was a lesbian.
The Court found in particular that the minor-offence proceedings against the applicant’s aggressor
had not addressed the hate-crime element of the offence and had resulted in a derisory fine. Those
shortcomings had amounted to a fundamental defect in the proceedings. It would therefore have
been justified for the authorities to terminate or annul the minor-offence proceedings and to reexamine the case, instead of them rejecting the applicant’s criminal complaint on grounds of double jeopardy.
PROVISION
Article 3
Article 14
PRINCIPAL FACTS
The applicant, Pavla Sabalić, is a Croatian national who was born in 1982 and lives in Zagreb.
On 13 January 2010 Ms Sabalić was attacked in a Zagreb nightclub by a man, M.M., when she
refused his advances, adding that she was a lesbian. He severely beat and kicked her, while shouting
‘All of you should be killed!’ and ‘I will f… you, lesbian!’. She sustained multiple injuries all over her
body for which she was treated in hospital.
The aggressor was convicted in minor-offence proceedings of breach of public peace and order and
given a fine of 300 Croatian kunas (approximately 40 euros (EUR)).
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, but eventually 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.
Relying on Article 3 (prohibition of inhuman or degrading treatment) in conjunction with Article 14
(prohibition of discrimination), Ms Sabalić complained that the official response to the attack on her,namely minor-offence proceedings, had not addressed the hate-crime element and had led to impunity for her aggressor. She also relied on Article 13 (right to an effective remedy).
Third-party comments were received from the non-governmental organisation “Zagreb Pride”, and
jointly from the non-governmental organisations the European Region of the International Lesbian,
Gay, Bisexual, Trans and Intersex Association, the Advice on International Rights in Europe Centre
and the International Commission of Jurists, who were granted leave to intervene in the case.
THE DECISION OF THE COURT…
Articles 3 and 14
The Court 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.
Those Convention requirements had not been met in the applicant’s case, as the minor-offence
proceedings against her aggressor had not addressed the hate-crime element of the offence.
Moreover, the aggressor had been sentenced to a derisory fine of approximately EUR 40, a sum
manifestly disproportionate to the seriousness of the attack.
Even in terms of domestic law, the police, who had been aware from the start that M.M. had
attacked the applicant when she had disclosed her sexual orientation to him, had had a duty to
inform the competent State Attorney’s Office, but had failed to do so.
Overall, the Court found that responding to the attack through minor-offence proceedings had
demonstrated that the State was not committed under the Convention to ensuring 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 Court noted the domestic authorities’ position that M.M.’s final conviction in the minor-offence
proceedings had created a formal impediment to his criminal prosecution on the grounds of double
jeopardy, and the Government’s argument that, on that basis, not implementing the effective
criminal-law mechanisms in the case had been justified.
However, the domestic authorities had themselves brought about such a situation by unnecessarily
instituting the ineffective minor-offence proceedings, thereby undermining the possibility of putting
properly into practice the relevant provisions and requirements of domestic criminal law.
The Court reiterated that the principle of legal certainty in criminal matters was not absolute. Article
4 § 2 of Protocol No. 7 (right not to be tried or punished twice) of the Convention expressly
permitted Contracting States to reopen a case to the detriment of an accused where, among other
things, a fundamental defect had been detected in the proceedings.
In the applicant’s case, the Court found that both the failure to investigate the hate motives behind
the violent attack or to take into consideration such motives in determining the aggressor’s
punishment had amounted to “fundamental defects” in the proceedings within the meaning of
Article 4 § 2 of Protocol No. 7.
The Court also noted that the domestic authorities could have put the situation right, for instance,
by terminating or annulling the unwarranted set of minor-offence proceedings, voiding their effects,
then re-examining the case.
In sum, the Court found that by instituting the ineffective minor-offence proceedings and
erroneously 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.
Given those findings, the Court held that no separate issue arose under Article 13 of the Convention.
Just satisfaction (Article 41)
The Court held that Croatia was to pay the applicant 10,000 euros (EUR) in respect of non-pecuniary
damage, and EUR 5,200 in respect of costs and expenses.
Separate opinion
Judge Wojtyczek expressed a partly concurring opinion, which is annexed to the judgment.
