The Chamber of the European Court of Human Rights has given judgment in a case regarding the procedural obligation on member states to appropriately investigate and prosecute hate crimes motivated by sexual orientation.
In January 2010 Ms Sabalić
was violently attacked in a Zagreb nightclub after refusing a man’s advances
and disclosing to him that she was a lesbian. The police failed to investigate
the motive behind the attack and instituted only minor offence proceedings for
breach of public peace and order, in which the aggressor was (unbeknown to the
victim) convicted and given a fine of 300 Croatian kunas (approximately 40
euros). When Ms Sabalić
lodged a criminal complaint against her aggressor before the competent
authorities, alleging that she had been the victim of a violent hate crime, the
authorities dismissed the complaint on
the basis that a criminal prosecution was barred by the minor offences
conviction. This was upheld by the domestic Croatian courts.
In a joint intervention, the AIRE Centre, ILGA-Europe (the European region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association), and the International Commission of Jurists submitted that the Court 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.
The Court held, unanimously, that the treatment to which Ms Sabalić was subjected to reached the requisite threshold to fall under Article 3 (prohibition of inhuman and degrading treatment) of the ECHR noting that discriminatory treatment can in principle amount to degrading treatment within the meaning of Article 3, where it attains a level of severity such as to constitute an affront to human dignity and that this was particularly true for violent hate crime. The Court held that the domestic authorities had failed to discharge their procedural obligations under the Convention in respect of the violent attack against the applicant motivated by her sexual orientation and had acted contrary to their duty to combat impunity for hate crimes, which are particularly destructive of fundamental human rights. Accordingly, there had been a violation of the procedural dimension of Article 3 in conjunction with Article 14 (prohibition of discrimination) of the ECHR.
Tom Mountford and Jason Pobjoy acted pro bono for the AIRE Centre, ILGA-Europe and the ICJ.