Sexual violence in the workplace – lenient sentence by Croatian courts

The European Court of Human Rights determined unanimously in the Vučković v. Croatia case (application no. 15798/20, 12.12.2023.) that a violation of Articles 3 (prohibition of inhuman and degrading treatment) and 8 (right to respect for private and family life) of the European Convention on Human Rights had occurred.

The case related to workplace sexual harassment. The complaint was filed by Ms. Vučković, a nurse, who claimed that her colleague, an ambulance driver, subjected her to sexual violence. Touching and grabbing various portions of her body, attempting to coerce her into performing oral sex, and threatening to terminate her if she disclosed the incidents were among the repeated assaults. The applicant was subsequently forced to take sick leave due to arm injury and subsequently post-traumatic stress disorder.

The applicant lodged a criminal complaint with the national court in relation to the assaults; initially, he received a 10-month penitentiary sentence. Nevertheless, the sentence was commuted to community service by the appellate court, reasoning that it would still fulfil its punitive function, considering that it had been four years since the initial assaults and the offender had not committed in any further crimes.

The complaint was submitted to the ECtHR by the applicant who contended that the State had neglected its positive responsibilities as stated in Articles 3 and 8 of the Convention. Specifically, the applicant alleged that the punishment imposed on the perpetrator was not proportionate to the criminal offences committed and was not deterrent in nature.

The Court reaffirmed that rape and serious sexual assault qualify as treatment under the scope of Article 3 of the Convention. Furthermore, the Court stated that such acts involve fundamental values and critical elements of “private life” as defined in Article 8.  Consistently, the Court has emphasised that Articles 3 and 8 of the Convention impose on States a positive obligation to establish criminal legislation that adequately penalises rape, as well as to implement that legislation through efficient investigation and prosecution. 

Furthermore, the Court observed that it is not within its power to contest the determination of the domestic courts that the perpetrator’s actions did not meet the criteria for attempted rape, but rather as “lewd acts.” Therefore, the Court cannot help but note that any force the perpetrator used against the applicant would undoubtedly be considered in determining the perpetrator’s sentence.

The Court observed that domestic courts failed to account for several factors that were pertinent under domestic law when determining sentences, including the applicant’s suffering as a result of the offence, the perpetrator’s conduct after committing the criminal offences in question, and “his apparent lack of remorse or any effort to compensate for the harm caused to the applicant.”

In addition, the appeals court failed to provide any credible justifications for “why the mere passage of time – which could in no way be imputable to the applicant and must have only further traumatised her (the applicant) as a victim– outweighed the above-mentioned serious aggravating circumstances”.

Consequently, the Court reached the following conclusion: “Bearing in mind the specific social danger of violence against women and the need to combat it with efficient and deterrent actions, in its response to the violence suffered by the applicant, the State did not sufficiently discharge its procedural obligation to ensure that the repeated sexual violence she had suffered in her workplace was dealt with appropriately”. As a result, the court found violation of Articles 3 and 8 of the Convention.