Sabalić v. Croatia (Application no. 50231/13)

A selection of key paragraphs can be found below the judgment.

104. The Court observes that following the physical attack against the applicant in the nightclub on 13 January 2010 the police immediately responded at the scene. Their initial findings showed that the applicant had sustained multiple physical injuries as a result of a violent attack by a man whose outburst of anger against the applicant had taken place after she had disclosed her sexual orientation to him (see paragraphs 7 above). These initial findings of the police were never put into doubt during the proceedings at the domestic level. Indeed, after the submission of the applicant’s criminal complaint providing details of the violent attack against her allegedly motivated by her sexual orientation, the State Attorney’s Office noted that in her statement to the investigating judge she had provided a detailed and comprehensive account of the events (see paragraphs 16 and 23 above), which was also confirmed by several witnesses interviewed by the police (see paragraph 19 above).

107.  Instead of lodging a criminal complaint before the State Attorney’s Office concerning the hate motivated violent attack against the applicant or conducting any further actions to elucidate the possible hate crime element of the events, as required by the relevant instructions (see paragraph 46 above), the police instituted minor offences proceedings in the Minor Offences Court indicting M.M. on charges of breach of public peace and order. These proceedings ended with M.M.’s conviction for the minor offence and his punishment by a fine of approximately EUR 40 without addressing or taking into account the hate motive at all. As there was no appeal by M.M. or the police, and since the applicant was not informed of the proceedings, M.M.’s minor offences conviction became final (see paragraphs 13-15 above). 

109.  Moreover, the Court notes that in the minor offences proceedings M.M. was sentenced to a derisory fine of approximately EUR 40. While the Court acknowledges the role of the national courts to determine the appropriate sentence for an offender, its task is to ensure that a State’s obligation to protect the rights of those under its jurisdiction is adequately discharged, which means that it must retain its supervisory function and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed (see Gäfgen v. Germany [GC], no. 22978/05, § 123, ECHR 2010; see also, for instance, Zontul, cited above, §§ 106-109, and further references in paragraph 98(iii) above). 

111.  In overall, the Court finds that such a response of the domestic authorities through the minor offences proceedings was not capable of demonstrating the State’s Convention commitment to ensuring that homophobic ill-treatment does not remain ignored by the relevant authorities and to providing effective protection against acts of ill-treatment motivated by the applicant’s sexual orientation. The sole recourse to the minor offences proceedings against M.M. could be considered rather as a response that fosters a sense of impunity for the acts of violent hate crime, than as a procedural mechanism showing that such acts could in no way be tolerated (compare Milanović, cited above, § 100; and also Kopylov, cited above, § 141; Darraj, cited above, §§ 48-49; Zontul, cited above, §§ 106-109; and Pulfer v. Albania, no. 31959/13, § 88 in fine, 20 November 2018). 

112.  However, as explained in the Government’s submissions, the State Attorney’s Office and the criminal courts found, on the basis of their interpretation of the Sergey Zolotukhin and Maresti case-law (both cited above) that M.M.’s final conviction in the minor offences proceedings for a breach of public peace and order created a formal impediment to his criminal prosecution for the violent hate crime on the grounds of the ne bis in idem principle (see paragraphs 23 and 26-27 above). The Government accordingly suggested in their submissions, that given that it was necessary to secure compliance with the ne bis in idem principle, the domestic authorities had a justified reason for not implementing the effective criminal-law mechanisms (that is to say, criminal law stricto sensu) in the present case (see paragraph 86 above). 

115.  In sum, in view of the above considerations, the Court finds that by instituting the ineffective minor offences proceedings and as a result erroneously discontinuing the criminal proceedings on formal grounds the domestic authorities failed to discharge adequately and effectively their procedural obligation under the Convention concerning the violent attack against the applicant motivated by her sexual orientation. Such conduct of the authorities is contrary to their duty to combat impunity for hate crimes which are particularly destructive of fundamental human rights (see paragraph 95 above). 

116.  There has therefore been a violation of Article 3 under its procedural aspect in conjunction with Article 14 of the Convention.