By Kyriaki Papadopoulou
For centuries, homosexuality has been disapproved and even considered illegal. It should raise concerns that 62 of 193 UN member states criminalise consensual same-sex acts, while two UN member states criminalise them de facto but not in legislation. In reality, the thorn in our (legal) culture is not gay people, but those who commit crimes against LGBTQI+ community because of their sexual identity. According to the European Court of Human Rights (ECtHR), which dealt with a racially motivated crime, the incorrect criminal characterisation of such a discriminatory act can result in additional violence for the victim. Besides the physical and psychological violence linked with the attack, legal violence can also occur through the mishandling of the victim’s case and the poor protection of his or her rights, as illustrated by the Sabalić v. Croatia case
In January 2010, the defendant approached the plaintiff in a nightclub, initially complimenting her. The applicant immediately stated that she was not interested in a sexual relationship with the defendant, even disclosing her homosexual preference. After hearing this last remark, the defendant uttered insults against the lesbian community (shouting “All of you should be killed”) and hit her multiple times, causing a contusion on her head, a haematoma on her forehead, abrasions of her face, forehead and around her lips, a neck strain, a contusion on her chest as well ass abrasions on her palms and knees. The Minor Offences Court qualified them as “minor bodily injuries”.
Domestic authorities took charge of the case and, even though they were confronted with prima facie indications of violence motivated or at least influenced by antipathy towards applicant’s sexual orientation, they imposed only a pecuniary penalty of approximately forty (40) euros for the crime of “breaching of public peace and order”. It should be highlighted that the authorities had the option of prosecuting and sanctioning the attacker. However, they limited themselves to recognising the perpetrator’s guilt. This could be considered as the lightest penalty possible in the European criminal justice system.
The victim, not informed of the criminal proceedings that preceded it, and after realising that the police had failed to institute a criminal investigation, lodged a criminal complaint, accusing the defendant of committing a “hate crime”.
In July 2011, the competent Court of First instance rejected the plaintiff’s complaint on the ground that a criminal procedure for the same act and against the same person had already been concluded. Therefore, the Court held that the review and retrial of the case would be contrary to the “ne bis in idem” principle, which states that no legal action can be instituted twice for the same cause of action. The competent Appellate Court and the highest criminal court of Croatia later confirmed this decision. Thus, the victim appealed to the ECtHR, alleging a violation of Articles 3 (prohibition of inhuman or degrading treatment), 13 (right to an effective remedy) and 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR).
According to the ECtHR and Article 4(2) of the Seventh Protocol to the ECHR, a prosecuting or judicial authority is allowed to initiate criminal proceedings a second time for the same act and against the same person if a fundamental misdiagnosis is found in the first procedure. The ECtHR estimated that the failure of the competent authorities to diagnose and take into account the racist motives constitutes a substantial defect. It could give the impression that, in choosing the proceedings for minor offences, the national authorities sought to keep the hate crime unpunished, rather than investigating and adequately sanctioning such an act. Subsequently, this treatment deprived the victim of the appropriate judicial protection, as the criminal proceedings were started and completed in the absence of the applicant, who did not even initiate them and who was not even aware of the defendant’s first conviction.
As a result, the ECtHR held the State of Croatia responsible for fostering a “sense of impunity” for homophobic acts of violent hate crime. It ordered the defender to pay fifteen thousand two hundred euros (15,200) for non-pecuniary damage and legal costs in favour of the plaintiff.
In summary, the Sabalić v. Croatia case is characterised by numerous breaches of the law. Firstly, the conduct of criminal proceedings in the absence of the victim and without informing her. Secondly, a series of inadequate decisions taken by the Croatian judicial authorities, which not only failed to protect the victim, but also deprived her of her rights and provoked additional violence. Without the victim’s determination, the criminal offence would have remained (almost) unpunished and largely distorted in favour of the perpetrator.
Additionally, the importance of the judgement also lies in the strong signal it sends to the Council of Europe member states, as was underlined by ILGA-Europe’s Head of Litigation, Arpi Avetisyan. It shows that they must “ensure effective investigation, prosecution and punishment of homophobic and transphobic violent crimes. Downplaying such crimes and letting the aggressors get away without due punishment serves as encouragement to homophobia and transphobia.”
Beyond highlighting the importance of taking into account the racist dimension of a crime for its correct legal categorisation, the case also shows that it is possible, under certain conditions, to institute new criminal proceedings for the same act, in derogation of the “ne bid in idem” principle..
European Studies Review 