The ineffective response of the Croatian authorities to the violent homophobic attack led to a violation of the Convention

In the case of Sabalić v. Croatia (application no. 50231/13, 14.01.2021) the European Court of Human Rights held, unanimously, that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) in conjunction with Article 14 (prohibition of discrimination) of the European Convention on Human Rights. 

The case concerned the applicant’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. 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)). The applicant, who had not been informed of those proceedings, lodged a criminal complaint against M.M. before the State Attorney’s Office. The State Attorney’s Office 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. 

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.

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 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.

Therefore, 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.

Reference from the official website of the European Court of Human Rights