Imposing a disproportionately lenient sentence for sexual assault constitutes degrading treatment and an invasion of privacy!
JUDGMENT
Vučković v. Croatia 12.12.2023 (app. no. 15798/20)
SUMMARY
The case concerned the sexual assaults that Ms Vučković, a nurse, suffered at the hands of an
ambulance driver colleague while working shifts together. Her assailant was sentenced to
10 months’ imprisonment, but that sentence was commuted to community service on appeal.
The Court found it concerning that the appellate court had chosen to replace the prison sentence
with community service without giving adequate reasons or considering in any way the interests of
the victim. Such an approach suggested that the Croatian courts were lenient in punishing violence
against women.
PROVISIONS
Article 3
Article 8
PRINCIPAL FACTS
The applicant, Maja Vučković, is a Croatian national who was born in 1978 and lives in Rijeka
(Croatia).
In June 2015 Ms Vučković, a nurse, lodged a criminal complaint against her ambulance driver
colleague. She accused him of sexually assaulting her while working shifts together between April
and June 2015, including touching and grabbing various parts of her body and trying to force her to
perform oral sex. The assaults had been accompanied by inappropriate language and threats that
she would be fired if she ever told anyone.
Her assailant was convicted at first instance of two counts of lewd acts and sentenced to 10 months’
imprisonment. The court noted in particular as aggravating factors the fact that the sexual offences
had been committed repeatedly and over a short space of time.
The sentence was, however, commuted to community service on appeal and, according to the
Government, duly served by the perpetrator. The second-instance court found that commuting the
sentence would serve the purpose of punishment, bearing in mind that four years had passed since
the assaults without the perpetrator’s having committed any further crimes.
The assaults resulted in the applicant having to go on sick leave because of an injury to her arm, and
later because of post-traumatic stress disorder.
THE DECISION OF THE COURT…
Firstly, the Court emphasised, and endorsed, the growing importance of community service in
modern penal policy in the member States, but also noted the need to stand firm on sexual abuse
and violence against women.
It was not for the Court to question the national courts’ finding that the assaults against the
applicant had only qualified as “lewd acts” instead of attempted rape. It did find, however, that the
violence of the acts – as established by the domestic courts – would clearly be relevant for
sentencing.
It was therefore striking that the appellate court, when commuting the sentence, had not even
mentioned the perpetrator’s high degree of criminal liability or his strong intent in committing the
sexual offences, despite having agreed with the first-instance court’s assessment of the aggravating
factors. Nor had it explained why the mere passage of time had outweighed such serious aggravating
factors.
Moreover, the Court noted that the domestic courts had not taken into consideration a number of
factors which had been relevant under the domestic law in the sentencing process, such as the
consequences of the offence on the applicant (her diagnosis and sick leave) and her assailant’s
behaviour after the assaults, including the alleged threats and his apparent lack of remorse.
The Court therefore found that the appellate court had not exercised the requisite careful scrutiny of
all the case’s circumstances when commuting the sentence.
Indeed, the Court found it concerning that the appellate court chose to replace the prison sentence
with community service without giving adequate reasons or considering in any way the interests of
the victim. Such an approach suggested that the domestic courts were lenient in punishing violence
against women, a fact further confirmed by the Council of Europe’s Group of Experts on Action
against Violence against Women and Domestic Violence (GREVIO) and its Baseline evaluation report
on Croatia. Leniency could in turn discourage victims from reporting such acts, whereas on the
statistics violence against women was worryingly common and seriously underreported.
The Court concluded that the State had not dealt appropriately with the repeated sexual violence
that the applicant had been subjected to in her workplace, in violation of Articles 3 and 8.
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 3,050 in respect of costs and expenses.
