Positive Duties to Combat Violent Hate Crime After Šečić v. Croatia

21 November 2007

Constantin Cojocariu¹

The European Court of Human Rights (hereafter "the Court") has in the recent years greatly expanded the ambit of the obligations binding State Parties under the European Convention on Human Rights (hereafter "the Convention"), by reading in the relatively sparse wording of the Convention an increasing number of positive duties.² The expanding body of case law on policing and criminal justice, especially in the context of Articles 2 and 3 of the Convention represents a more substantial thrust in that direction. The recently adopted Šečić v. Croatia³ judgment (hereafter "Šečić"), a case filed by the European Roma Rights Centre, expands the Court's jurisprudence in this area and brings a long overdue condemnation by the foremost regional human rights body of hate crime, a particularly heinous and widespread phenomenon in modern day Europe. By extending the Nachova⁴ procedural obligations across the board to all perpetrators of hate crime, whether state agents or private individuals, Šečić opens the way for further crystallisation of the Court's jurisprudence on the positive duties which govern official response to raciallymotivated violent crime. This article will provide a brief synopsis of that judgment, followed by a succinct exploration of positive duties in this field in light of Šečić as well as of other relevant case law of the Court.

The Šečić v. Croatia Judgment

On 29 April 1999, the applicant, a Croatian national of Romani ethnicity, was gathering scrap iron in a neighbourhood of Zagreb when he was violently attacked by a group of individuals. As a result of the beating received, he was hospitalised with multiple rib fractures and suffered longterm psychological damage. The attackers were known to belong to a skinhead group who would engage over the following years in numerous attacks against Roma.⁵

The applicant filed a criminal complaint with the relevant authorities in the immediate aftermath of the attack, and over the following years filed numerous letters providing further clues to the police as to the identity of his attackers, requesting that the investigation be expedited. In spite of those appeals, the efforts undertaken by the authorities to elucidate the circumstances of the attack, identify and punish the attackers were very limited and, in particular, they failed to pursue obvious leads that could have helped find the perpetrators. At the time of the Court's judgment, more than eight years after the original incident took place, the investigation was still formally open and in the pre-trial phase.

The Court published its judgment in the Šečić v. Croatia case on 31 May 2007, holding that the Croatian government was responsible for violations of Articles 3 (prohibition of torture) and 14 (prohibition of discrimination) of the Convention.

With regard to the violation of the prohibition of inhuman or degrading treatment, the Court reiterated that Article 3 in conjunction with Article 1 of the Convention gave rise to certain positive obligations – first, that states are required to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill treatment, including ill treatment administered by private individuals,⁶ and second, and related, that states are required to conduct an official investigation which is reasonably expeditious, an obligation that is not limited solely to cases of ill treatment by state agents.⁷ Applying these principles to the facts before it, the Court noted in detail the shortcomings of the official investigation and concluded that "the failure of the state authorities to further the case or obtain any tangible evidence with a view to identifying and arresting the attackers over a prolonged period of time indicates that the investigation did not meet the requirements of Article 3 of the Convention."⁸ With regard to the applicant's Article 14 claim, the Court reiterated the principle first expounded in Nachova that States have an obligation to investigate possible racist overtones to a violent act, and extended it for the first time to cover ill treatment committed by private individuals.⁹ The Court noted that, in the case at hand, the applicant's attackers belonged to a skinhead group, "which is by its nature governed by extremist and racist ideology",¹⁰ which in turn was indicative of the fact that the incident was motivated by racial hatred. The Croatian authorities ignored, however, the nature of the attack and allowed the investigation to last for more than eight years without undertaking any serious steps with a view to identifying or prosecuting the perpetrators. The Court deemed this to be "unacceptable"¹¹ and held that it warranted the finding of a violation of Article 14 of the Convention.

Positive Duties to Combat Violent Hate Crime

In Šečić, the Strasbourg Court reiterated the emphatic condemnation of racism and racist crime articulated in Nachova. Accordingly, since racism and racist violence and brutality, whether inflicted by State agents or private individuals, are "particularly destructive of fundamental rights", a determined response from the authorities is required. Given this stark condemnation of racist crime, it is more likely that the Court will be willing in the future to extend the positive duties of authorities and aimed at preventing and prosecuting violent hate crime.

The Court has in its more recent case law developed certain positive obligations in the field of policing and criminal justice that could be extended to govern States' duties to fight hate crime.

On a number of occasions, the Court has sanctioned the absence and/or inappropriateness of existing domestic legislation acting as a deterrent against crime inflicted on certain vulnerable categories of individuals such as children subjected to corporal punishment, victims of rape or domestic servants.¹² Thus, in X and Y v. Netherlands, the Court held that there was a violation of Article 8 of the Convention because of the gaps existent in Dutch legislation, which did not allow effective prosecution of the sexual abuse of a 16-year old mentally disabled girl.¹³ Once the positive obligation to investigate possible racist motives behind violent crime was extended by Šečić across the board to cover ill treatment inflicted by private individuals, this strand of the Court's jurisprudence should mean in practice that an obligation may be construed whereby States put in place effective legislation combating hate crime, by providing, for example, that racist motives constitute aggravating factors in ordinary offences. Besides the case law invoked above, such a conclusion may be supported by the particular heinous character of hate crime as highlighted by the Court in Nachova and Šečić, as well as emerging European-wide legislative standards making racist motives an aggravating factor, which include, for example, the Framework Decision for Combating Racism and Xenophobia.

Besides the prerequisite of having legislation to act as a deterrent against racist crime, the Court has in a few cases insisted that additionally, the legislation has to be effective in practice as well. In M.C. v. Bulgaria,¹⁴ the Court looked into the effectiveness of the Bulgarian law making rape a criminal offence. The Court observed that the effective criminal investigation and prosecution of two men alleged to have raped a 14-year-old girl was made impossible by the fact that Bulgarian domestic practice made proof of physical resistance a requirement for a prosecution for rape. The Court found a violation of Articles 3 (prohibition of torture) and 8 (right to respect for private and family life), reasoning that all forms of rape and sexual abuse necessitated effective criminal sanctions. The same reasoning was applied by the Court in Siliadin v. France,¹⁵ in which the Court found that French domestic legislation sanctioning servitude and forced labour failed to provide effective protection in practice to victims of such practices.¹⁶

Turning to the object of the present article, this obligation may require a more exacting scrutiny from the Court of the efficiency of legislation governing the investigation and prosecution of hate crimes in certain States Parties to the Council of Europe. This could be a crucial development, given the fact that the leniency exhibited by the Croatian authorities when dealing with the complaint filed by Mr Šečić is typical of the attitude manifested by authorities throughout the region when confronted with allegations of racist abuse, whether committed by state agents or by private individuals.

Conclusion

Šečić is an important judgment in that it consolidates the findings of the Court in the earlier Nachova decision by extending the protection offered by the Convention to members of ethnic minorities who are victims of racist abuse, regardless of whether that abuse is perpetrated by state agents or third parties. Moreover, as argued above, Šečić opens the way to challenges by human rights advocates in relation to the comprehensiveness and efficiency in practice of domestic legislation combating racially-motivated violence.

Endnotes:

1. Constantin Cojocariu was Staff Attorney at the ERRC from June 2005 through August 2007. As of September 2007, Mr Cojocariu had taken up the post of Lawyer for the Europe Programme with the London-based organisation Interights.
2. See generally on positive obligations: Interights. 2006. Bulletin: Positive Obligations of States and the Protection of Human Rights. Volume 15, No 3; and Mowbray, A. R. 2004. The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights. Oxford: Hart Publishing.
3. Šečić v. Croatia. Application no. 40116/2002. Judgment dated 31 May 2007.
4. Nachova v. Bulgaria. Application nos. 43577/98 and 43579/98, filed by the ERRC. Judgment by the Grand Chamber dated 6 July 2005. This case concerned the killing by Bulgarian military police of two young Romani men who had absconded from the army and the ensuing official investigation. The Court held that Bulgaria violated, inter alia, the positive obligations stemming from Convention Articles 2 (to conduct an effective investigation) and 14 (to investigate the possible racist motives behind the events), which are referred to here.
5. Similar incidents were documented in extenso by a number of non-governmental organisations including the European Roma Rights Centre and were referred to by inter governmental organisations. See, for example: European Commission against Racism and Intolerance. 17 December 2004. Third Report on Croatia. Pp. 10-12.
6. Šečić, §52.
7. Šečić, §53.
8. Šečić, §59.
9. Šečić, §66-67.
10. Šečić, §68.
11. Šečić, §69.
12. Leach, Philip. 2006. “Positive Obligations from Strasbourg – Where Do the Boundaries Lie?” In Interights Bulletin. Volume 15, No 3, p. 123-126.
13. X and Y v. Netherlands. Application no. 8978/80. Judgment dated 26 March 1985.
14. M.C. v. Bulgaria. Application no. 39272/98. Judgment dated 4 December 2003.
15. Siliadin v. France. Application no. 73316/01. Judgment dated 26 July 2006.
16. Pitea, Cesare. 2006. “Preventing Slavery: Positive Obligations under the ECHR after Siliadin v. France.” In Interights Bulletin. Volume 15, No. 3, p. 143-145.