Case of Bednarek and Others v. Poland (Application no. 58207/14)
A selection of key paragraphs can be found below the judgment.
81. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim. Furthermore, Article 3 cannot be limited to acts of physical ill-treatment; it also covers the infliction of psychological suffering. Hence, the treatment can be qualified as degrading when it arouses in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. The Court further reiterates that discriminatory treatment as such 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. More specifically, treatment which is grounded upon a predisposed bias on the part of a heterosexual majority against a homosexual minority may, in principle, fall within the scope of Article 3. Discriminatory remarks and insults must in any event be considered as an aggravating factor when considering a given instance of ill-treatment in the light of Article 3 (see Identoba and Others, cited above, § 65, with further references – concerning the State’s failure to protect LGBTI demonstrators from homophobic violence and to investigate effectively the incident by establishing, in particular, the discriminatory motive of the attackers). This is particularly true for violent hate crime.
82. In this connection it should be remembered that not only acts based solely on a victim’s characteristics can be classified as hate crimes. For the Court, perpetrators may have mixed motives, being influenced by situational factors equally or more than by their biased attitude towards the group the victim belongs to (see Oganezova, cited above, § 81, with further references). The Court also reiterates that attacks on LGBTI individuals, triggered by expressions of affection, constitute an affront to human dignity by targeting universal expressions of love and companionship. The concept of dignity goes beyond mere personal pride or self-esteem, encompassing the right to express one’s identity and affection without fear of retribution or violence. Homophobic attacks not only undermine victims’ physical safety but also their emotional and psychological well-being, turning a moment of intimacy into one of fear and trauma. Furthermore, they humiliate and debase the victims, conveying a message that their identities and expressions are inferior, and therefore fall within the scope of Article 3 of the Convention (see Hanovs v. Latvia, no. 40861/22, § 42, 18 July 2024).
83. The Court considers that the treatment to which all three applicants were subjected, on account of them being a target of homophobic insults and of them being drawn into a violent altercation that, additionally, involved battery on two of the them and risk of the third applicant experiencing the same (see paragraph 6 above), must necessarily have aroused in them feelings of fear, anguish and insecurity, and must have constituted an affront to their dignity.
84. The Court also considers that the physical injuries which the first two applicants sustained as a result of the attack, given their intensity (see paragraph 6 above), could in themselves raise an issue under Article 3 of the Convention (see, for example, Beganović v. Croatia, no. 46423/06, § 66, 25 June 2009; Milanović v. Serbia, no. 44614/07, § 87, 14 December 2010; and Mityaginy v. Russia, no. 20325/06, § 49, 4 December 2012).
85. It follows that, in respect of all three applicants, the treatment complained of reached the requisite threshold of severity to fall under Article 3 of the Convention (compare Identoba and Others, cited above, § 71; M.C. and A.C. v. Romania, cited above, § 119; and Hanovs, cited above, §§ 41-44; see also Balázs v. Hungary, no. 15529/12, § 57, 20 October 2015).
105. Without intending to express any approval or disapproval towards the Polish courts’ ruling on these points, the Court would nonetheless stress that the perpetrators were neither charged nor prosecuted for a hate-motivated attack (see, mutatis mutandis, Stoyanova, cited above, § 71, and compare, mutatis mutandis, Hanovs, cited above, § 51). Moreover, the attackers’ demonstration of hostility towards people whom they perceived to be homosexual (see paragraph 25 above) was not taken into account in the determination of the punishment, effectively rendering this fundamental aspect of the crime invisible and of no criminal significance (see, mutatis mutandis, Stoyanova, § 73; Oganezova, § 103; and Hanovs, § 51, all cited above). It does not appear, therefore, that the absence of legislative provisions identifying and punishing motives based on hostility towards the sexual orientation of an assault or battery victim was made good by the fact that the domestic courts in the instant case took note of the homophobic dimension of the events or condemned – in passing – the discriminatory attitude of one of the perpetrators (see paragraph 102 above, and see, mutatis mutandis, Stoyanova, § 72, and compare Oganezova, § 103, both cited above).
106. It follows that the State’s response to the attack against the applicants did not, in sufficient measure, discharge its duty to ensure that violent attacks motivated by hostility towards victims’ actual or presumed sexual orientation do not remain without an appropriate response.
107. Accordingly, there has been a violation of Article 3 of the Convention taken in conjunction with Article 14 of the Convention.