Šečić v. Croatia: Obligation to prosecute hate crimes committed by private individuals
06.09.2022
Introduction
As noted by OSCE-ODIHR: “Hate crimes are violent manifestations of intolerance and have a deep impact not only on the immediate victim but the group with which that victim identifies him or herself. They affect community cohesion and social stability. A vigorous response is therefore, important both for individual and communal security[i]”. A general definition of hate crimes given by the same organization[ii] characterizes them as criminal acts motivated by bias or prejudice towards particular groups of people. To be considered a hate crime, the offence must meet two criteria. Firstly, the act must constitute an offence under criminal law. Secondly, the act must have been motivated by bias. It is clear that this form of crime represents a very dangerous manifestation of violence that needs to be approached accurately by the state institutions due to the harm it represents to society. Therefore, a meticulous legal regulation of the criminal responsibility for hate crimes is crucial not only in terms of amending provisions of criminal codes, but also in terms of creating and implementing comprehensive strategies for the enactment of such provisions. Hate crimes not properly prosecuted in a country can have and usually manifest severe consequences and they can contribute to the marginalization of communities in a society.
Hate crimes are identified and prosecuted using bias indicators. Bias indicators are one or more facts that suggest that a crime may have been committed with a bias motivation[iii]. Bias indicators include but are not limited to: Victim/witness perception (Does the victim or witnesses perceive that the incident was motivated by bias?), Comments, Written Statements, Gestures or Graffiti (Did the suspect make comments, written statements or gestures regarding the victim’s community?), Racial, Ethnic, Gender, and Cultural Differences (Do the suspect and victim differ in terms of their racial, religious or ethnic/national background or sexual orientation? Is there a history of animosity between the victim’s group and the suspect’s group? Is the victim a member of a group that is overwhelmingly outnumbered by members of another group in the area where the incident occurred?), Organized Hate Groups (Is there evidence that such a group is active in the neighborhood (e.g., posters, graffiti or leaflets?)), Previous Bias Crimes/Incidents (Have there been similar incidents in the same area? Who were the victims?), etc.
Šečić v. Croatia is a very important decision of the European Court of Human Rights addressing the need for proper prosecution of hate crimes. The key facts and findings of this decision will be discussed in the following paragraphs.
Fats of the case
As explained in the final judgement of the case Šečić v. Croatia[iv], on 29 April 1999, the applicant, a Croatian national of Roma ethnicity, together with several other individuals, was gathering scrap iron in a neighbourhood of Zagreb. Suddenly, he was violently attacked and beaten all over his body with wooden planks by a group of individuals who were shouting racial abuse. After a reporting call from an unknown individual, the police patrol arrived at the scene and initially interviewed the persons on the spot and searched for the perpetrators in the local area. An ambulance also arrived at the scene and took the applicant to a nearby hospital where the doctors concluded that no bones had been broken, prescribed painkillers and sent the victim home to rest. During the night, the applicant experienced severe pain and in the next day he went to another hospital where it was found that as a result of the assault, he had sustained multiple rib fractures, he was kept in the hospital for further examination and was discharged a week later. The applicant also suffered longterm psychological damage diagnosed with post-traumatic stress disorder characterized by depression, anxiety, panic attacks, fears for his own safety and that of his family, intermittent insomnia, and nightmares and, in general, an emotional breakdown.
On 15 July 1999 the applicant's lawyer lodged a criminal complaint with the Zagreb Municipal State Attorney's Office (Općinsko državno odvjetništvo u Zagrebu “the State Attorney's Office”) against persons unknown. She gave a factual account of the incident and alleged that the applicant had been seriously injured. The applicant offered his own testimony in evidence and proposed that three eyewitnesses be heard. The applicant requested the State Attorney's Office to investigate the incident, identify the perpetrators and institute criminal proceedings against them.
On the same day the applicant's lawyer sent a letter to the Zagreb Police Department (Policijska uprava Zagrebačka “the police”) in which she informed the police of the incident and requested the information necessary for the institution of criminal proceedings. She repeated her request on 30 August 1999. On 31 August 1999 the police informed the applicant's lawyer that the perpetrators had not been identified. On 2 September 1999 the applicant's lawyer wrote to the Minister of the Interior (Ministar unutarnjih poslova) informing him of the incident and stating that the police had not identified the perpetrators. She requested decisive police action, relying on the relevant domestic and international human rights standards. Over the following years, the applicant’s lawyer filed numerous letters providing further clues regarding the identity of the attackers, with requests to speed up the investigation. In these letters the applicant’s lawyer suggested numerous witnesses who could have given evidence on the attackers, as well as indicated an interview conducted by a journalist with a member of a group of “skinheads” who had spoken about similar attacks motivated by hatred towards people of Roma ethnic background. Three years later, since there was no evidence on any progress of the investigation, on 6 April 2002 the applicant lodged a constitutional complaint with the Constitutional Court, requesting it to order the State Attorney's Office to take all necessary action to complete the investigation as soon as possible and within six months at the latest. On 12 November 2002 the Constitutional Court informed the applicant's lawyer that it had no competence to rule on cases involving prosecutorial inaction during the pre-trial stage of proceedings and took no formal decision on the complaint.
On 12 November 2002 the applicant applied at the ECtHR represented by the European Roma Rights Centre based in Budapest and by Mrs. Lovorka Kušan, a lawyer practicing in Ivanić-Grad. The applicant alleged, in particular, that the domestic authorities had failed to undertake a serious and thorough investigation of an attack on him, and also that he had been discriminated against on the basis of his Roma origin. The applicant complained that the investigation carried out by the Croatian authorities following the attack on him had been unreasonably delayed and ineffective, in breach of Articles 3, 8 and 13 of the Convention.
At the time of the ECtHR's judgment in 2007, more than eight years after the original incident took place, the investigation in Croatia was still formally open and in the pre-trial phase.
Overview of the ECtHR decision on Šečić v. Croatia
The ECtHR found that the Article 3 of the European Convention on Human Rights was violated in this case[v]. The Court considers that the injury suffered by the applicant, including several broken ribs and subsequent hospitalization, was sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention[vi]. The Court indicated that Article 3 gives rise to a positive obligation to the states to conduct an official investigation in all cases where there is evidence that this article has been violated, this not being limited solely to cases of ill-treatment by State agents. The Court reaffirms that states need to undertake measures which ensure promptness and reasonable expedition of the investigation in such cases. The Court found that in the case Šečić v. Croatia the police have not brought charges against anyone, and the criminal proceedings have now been pending in the pre-trial phase for almost seven years. Although the police had clear indicators that the perpetrators belonged to a group of skinheads, they appear never to have brought in for questioning any person belonging to this group or to have pursued this information in any other way, moreover, they excluded a person identified by one of the witnesses from the list of possible suspects without questioning him about the attack. Furthermore, the police interviewed the journalist who had talked to one of the skinhead members who had alluded to the attack on the applicant. However, they did not request the competent court to order that the journalist reveal his source of information in line with the provisions of the domestic law. Concluding the remarks on Article 3, the Court the Court considers 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 ECHR and that that there has been a breach of the mentioned article.
What is particularly important about this case, is that the ECtHR found a violation of article 14 of the ECHR[vii]. The Court emphasized that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events[viii]. Referring to the case Nachova and Others v. Bulgaria[ix], the Court emphasizes that cases when Article 3 is violated under circumstances of discrimination should be prosecuted regardless of whether the perpetrators are state officials or private individuals. Probably the most important paragraph of this judgment is the following:
“Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Nachova and Others, with further references).[x]”
The Court considers it unacceptable that, being aware that the event at issue was most probably induced by ethnic hatred, the police allowed the investigation to last for more than seven years without taking any serious action with a view to identifying or prosecuting the perpetrators, therefore, the Court considers that there has been a violation of Article 14 taken in conjunction with the procedural aspect of Article 3 of the Convention[xi].
Šečić v. Croatia is the first judgement of the ECtHR in which the Court has elaborated on the obligations of states in cases of racially-motivated attacks perpetrated by private individuals. This judgement is a call for swift prosecution of hate crimes at a time when such attacks can be identified throughout Europe, in Western Balkans and in North Macedonia. This judgement obliges the state authorities to prosecute without delay any cases which relate to fundamental violations of human rights, even more so when there are indicators that such violations are done under bias motives. Lack of identification of hate crimes is characteristic for many Western Balkan Countries including North Macedonia, where there still are no court decisions which relate directly to hate crimes, despite the amendments of the Criminal Code which clearly indicate an obligation to qualify hate crimes as more severe in comparison to ordinary crimes. In the case Šečić v. Croatia, it has been clear from the very beginning that a hate crime has been committed. The case meets at least eight OSCE-ODIHR indicators of hate crimes as explained in the introduction of this analysis, and yet, the state authorities have failed to properly identify and prosecute this crime as such. Therefore, it is understandable that the ECtHR has found that the delay in proceedings and failure to identify this case as an ethnically bias hate crime is unacceptable.
Conclusion
Hate crimes are criminal acts committed with a bias motivation. It is this motivation that makes hate crimes different from other crimes. The target of a hate crime may be a person, people or property associated with a group that shares a protected characteristic. A protected characteristic is a fundamental or core characteristic shared by a group, such as “race”, religion, ethnicity, disability, language or sexual orientation.
Hate crimes that are not properly prosecuted and punished represent a serious threat to the interpersonal, inter-ethnic and inter-confessional relations in a country. Failure of state institutions to prosecute such crimes indicates that the state is willing to tolerate them. Tolerance shown towards hate crimes creates marginalised groups and communities who distance themselves from the state institutions because of the feeling that they are not appropriately protected by the institutions that should guarantee their protection. This lack of trust in institutions creates many other problems which emerge from the marginalization and discrimination of groups of people.
States should consider the ECtHR judgment on Šečić v. Croatia very carefully and implement it in their court practice. It is very important that hate crimes are identified in the early stages of criminal proceedings using the bias indicators developed by the OSCE-ODIHR and other international mechanisms. In Šečić v. Croatia the ECtHR has clearly indicated the obligation for states to identify and prosecute hate crimes committed by private individuals. Failure to do so not only put the state in a vulnerable position of being held internationally accountable for such crimes, but also endangers the respect for fundamental human rights and the cohesion between the communities living in the state.
[i]OSCE-ODIHR. (2009). Hate Crime Laws A Practical Guide. Warsaw.
[ii] More information available at http://www.hatecrime.osce.org
[iii] Understanding Hate Crimes – A Handbook for Bosnia and Herzegovina, 2010, OSCE-ODIHR, Warsaw.
[iv]Šečić v. Croatia Application no. 40116/02, 31.08.2007
[v] Article 3, ECHR: No one shall be subjected to torture or to inhuman or degrading treatment or punishment
[vi] Šečić v. Croatia, para. 51.
[vii] Article 14, ECHR: The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
[viii] Šečić v. Croatia, para. 66.
[ix] Nachova v. Bulgaria, Application no. 43577/98 & 43579/98
[x] Šečić v. Croatia, para. 67.
[xi] Para. 70.
As noted by OSCE-ODIHR: “Hate crimes are violent manifestations of intolerance and have a deep impact not only on the immediate victim but the group with which that victim identifies him or herself. They affect community cohesion and social stability. A vigorous response is therefore, important both for individual and communal security[i]”. A general definition of hate crimes given by the same organization[ii] characterizes them as criminal acts motivated by bias or prejudice towards particular groups of people. To be considered a hate crime, the offence must meet two criteria. Firstly, the act must constitute an offence under criminal law. Secondly, the act must have been motivated by bias. It is clear that this form of crime represents a very dangerous manifestation of violence that needs to be approached accurately by the state institutions due to the harm it represents to society. Therefore, a meticulous legal regulation of the criminal responsibility for hate crimes is crucial not only in terms of amending provisions of criminal codes, but also in terms of creating and implementing comprehensive strategies for the enactment of such provisions. Hate crimes not properly prosecuted in a country can have and usually manifest severe consequences and they can contribute to the marginalization of communities in a society.
Hate crimes are identified and prosecuted using bias indicators. Bias indicators are one or more facts that suggest that a crime may have been committed with a bias motivation[iii]. Bias indicators include but are not limited to: Victim/witness perception (Does the victim or witnesses perceive that the incident was motivated by bias?), Comments, Written Statements, Gestures or Graffiti (Did the suspect make comments, written statements or gestures regarding the victim’s community?), Racial, Ethnic, Gender, and Cultural Differences (Do the suspect and victim differ in terms of their racial, religious or ethnic/national background or sexual orientation? Is there a history of animosity between the victim’s group and the suspect’s group? Is the victim a member of a group that is overwhelmingly outnumbered by members of another group in the area where the incident occurred?), Organized Hate Groups (Is there evidence that such a group is active in the neighborhood (e.g., posters, graffiti or leaflets?)), Previous Bias Crimes/Incidents (Have there been similar incidents in the same area? Who were the victims?), etc.
Šečić v. Croatia is a very important decision of the European Court of Human Rights addressing the need for proper prosecution of hate crimes. The key facts and findings of this decision will be discussed in the following paragraphs.
Fats of the case
As explained in the final judgement of the case Šečić v. Croatia[iv], on 29 April 1999, the applicant, a Croatian national of Roma ethnicity, together with several other individuals, was gathering scrap iron in a neighbourhood of Zagreb. Suddenly, he was violently attacked and beaten all over his body with wooden planks by a group of individuals who were shouting racial abuse. After a reporting call from an unknown individual, the police patrol arrived at the scene and initially interviewed the persons on the spot and searched for the perpetrators in the local area. An ambulance also arrived at the scene and took the applicant to a nearby hospital where the doctors concluded that no bones had been broken, prescribed painkillers and sent the victim home to rest. During the night, the applicant experienced severe pain and in the next day he went to another hospital where it was found that as a result of the assault, he had sustained multiple rib fractures, he was kept in the hospital for further examination and was discharged a week later. The applicant also suffered longterm psychological damage diagnosed with post-traumatic stress disorder characterized by depression, anxiety, panic attacks, fears for his own safety and that of his family, intermittent insomnia, and nightmares and, in general, an emotional breakdown.
On 15 July 1999 the applicant's lawyer lodged a criminal complaint with the Zagreb Municipal State Attorney's Office (Općinsko državno odvjetništvo u Zagrebu “the State Attorney's Office”) against persons unknown. She gave a factual account of the incident and alleged that the applicant had been seriously injured. The applicant offered his own testimony in evidence and proposed that three eyewitnesses be heard. The applicant requested the State Attorney's Office to investigate the incident, identify the perpetrators and institute criminal proceedings against them.
On the same day the applicant's lawyer sent a letter to the Zagreb Police Department (Policijska uprava Zagrebačka “the police”) in which she informed the police of the incident and requested the information necessary for the institution of criminal proceedings. She repeated her request on 30 August 1999. On 31 August 1999 the police informed the applicant's lawyer that the perpetrators had not been identified. On 2 September 1999 the applicant's lawyer wrote to the Minister of the Interior (Ministar unutarnjih poslova) informing him of the incident and stating that the police had not identified the perpetrators. She requested decisive police action, relying on the relevant domestic and international human rights standards. Over the following years, the applicant’s lawyer filed numerous letters providing further clues regarding the identity of the attackers, with requests to speed up the investigation. In these letters the applicant’s lawyer suggested numerous witnesses who could have given evidence on the attackers, as well as indicated an interview conducted by a journalist with a member of a group of “skinheads” who had spoken about similar attacks motivated by hatred towards people of Roma ethnic background. Three years later, since there was no evidence on any progress of the investigation, on 6 April 2002 the applicant lodged a constitutional complaint with the Constitutional Court, requesting it to order the State Attorney's Office to take all necessary action to complete the investigation as soon as possible and within six months at the latest. On 12 November 2002 the Constitutional Court informed the applicant's lawyer that it had no competence to rule on cases involving prosecutorial inaction during the pre-trial stage of proceedings and took no formal decision on the complaint.
On 12 November 2002 the applicant applied at the ECtHR represented by the European Roma Rights Centre based in Budapest and by Mrs. Lovorka Kušan, a lawyer practicing in Ivanić-Grad. The applicant alleged, in particular, that the domestic authorities had failed to undertake a serious and thorough investigation of an attack on him, and also that he had been discriminated against on the basis of his Roma origin. The applicant complained that the investigation carried out by the Croatian authorities following the attack on him had been unreasonably delayed and ineffective, in breach of Articles 3, 8 and 13 of the Convention.
At the time of the ECtHR's judgment in 2007, more than eight years after the original incident took place, the investigation in Croatia was still formally open and in the pre-trial phase.
Overview of the ECtHR decision on Šečić v. Croatia
The ECtHR found that the Article 3 of the European Convention on Human Rights was violated in this case[v]. The Court considers that the injury suffered by the applicant, including several broken ribs and subsequent hospitalization, was sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention[vi]. The Court indicated that Article 3 gives rise to a positive obligation to the states to conduct an official investigation in all cases where there is evidence that this article has been violated, this not being limited solely to cases of ill-treatment by State agents. The Court reaffirms that states need to undertake measures which ensure promptness and reasonable expedition of the investigation in such cases. The Court found that in the case Šečić v. Croatia the police have not brought charges against anyone, and the criminal proceedings have now been pending in the pre-trial phase for almost seven years. Although the police had clear indicators that the perpetrators belonged to a group of skinheads, they appear never to have brought in for questioning any person belonging to this group or to have pursued this information in any other way, moreover, they excluded a person identified by one of the witnesses from the list of possible suspects without questioning him about the attack. Furthermore, the police interviewed the journalist who had talked to one of the skinhead members who had alluded to the attack on the applicant. However, they did not request the competent court to order that the journalist reveal his source of information in line with the provisions of the domestic law. Concluding the remarks on Article 3, the Court the Court considers 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 ECHR and that that there has been a breach of the mentioned article.
What is particularly important about this case, is that the ECtHR found a violation of article 14 of the ECHR[vii]. The Court emphasized that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events[viii]. Referring to the case Nachova and Others v. Bulgaria[ix], the Court emphasizes that cases when Article 3 is violated under circumstances of discrimination should be prosecuted regardless of whether the perpetrators are state officials or private individuals. Probably the most important paragraph of this judgment is the following:
“Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Nachova and Others, with further references).[x]”
The Court considers it unacceptable that, being aware that the event at issue was most probably induced by ethnic hatred, the police allowed the investigation to last for more than seven years without taking any serious action with a view to identifying or prosecuting the perpetrators, therefore, the Court considers that there has been a violation of Article 14 taken in conjunction with the procedural aspect of Article 3 of the Convention[xi].
Šečić v. Croatia is the first judgement of the ECtHR in which the Court has elaborated on the obligations of states in cases of racially-motivated attacks perpetrated by private individuals. This judgement is a call for swift prosecution of hate crimes at a time when such attacks can be identified throughout Europe, in Western Balkans and in North Macedonia. This judgement obliges the state authorities to prosecute without delay any cases which relate to fundamental violations of human rights, even more so when there are indicators that such violations are done under bias motives. Lack of identification of hate crimes is characteristic for many Western Balkan Countries including North Macedonia, where there still are no court decisions which relate directly to hate crimes, despite the amendments of the Criminal Code which clearly indicate an obligation to qualify hate crimes as more severe in comparison to ordinary crimes. In the case Šečić v. Croatia, it has been clear from the very beginning that a hate crime has been committed. The case meets at least eight OSCE-ODIHR indicators of hate crimes as explained in the introduction of this analysis, and yet, the state authorities have failed to properly identify and prosecute this crime as such. Therefore, it is understandable that the ECtHR has found that the delay in proceedings and failure to identify this case as an ethnically bias hate crime is unacceptable.
Conclusion
Hate crimes are criminal acts committed with a bias motivation. It is this motivation that makes hate crimes different from other crimes. The target of a hate crime may be a person, people or property associated with a group that shares a protected characteristic. A protected characteristic is a fundamental or core characteristic shared by a group, such as “race”, religion, ethnicity, disability, language or sexual orientation.
Hate crimes that are not properly prosecuted and punished represent a serious threat to the interpersonal, inter-ethnic and inter-confessional relations in a country. Failure of state institutions to prosecute such crimes indicates that the state is willing to tolerate them. Tolerance shown towards hate crimes creates marginalised groups and communities who distance themselves from the state institutions because of the feeling that they are not appropriately protected by the institutions that should guarantee their protection. This lack of trust in institutions creates many other problems which emerge from the marginalization and discrimination of groups of people.
States should consider the ECtHR judgment on Šečić v. Croatia very carefully and implement it in their court practice. It is very important that hate crimes are identified in the early stages of criminal proceedings using the bias indicators developed by the OSCE-ODIHR and other international mechanisms. In Šečić v. Croatia the ECtHR has clearly indicated the obligation for states to identify and prosecute hate crimes committed by private individuals. Failure to do so not only put the state in a vulnerable position of being held internationally accountable for such crimes, but also endangers the respect for fundamental human rights and the cohesion between the communities living in the state.
[i]OSCE-ODIHR. (2009). Hate Crime Laws A Practical Guide. Warsaw.
[ii] More information available at http://www.hatecrime.osce.org
[iii] Understanding Hate Crimes – A Handbook for Bosnia and Herzegovina, 2010, OSCE-ODIHR, Warsaw.
[iv]Šečić v. Croatia Application no. 40116/02, 31.08.2007
[v] Article 3, ECHR: No one shall be subjected to torture or to inhuman or degrading treatment or punishment
[vi] Šečić v. Croatia, para. 51.
[vii] Article 14, ECHR: The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
[viii] Šečić v. Croatia, para. 66.
[ix] Nachova v. Bulgaria, Application no. 43577/98 & 43579/98
[x] Šečić v. Croatia, para. 67.
[xi] Para. 70.