Hate crimes committed by private persons
It should be noted, however, that the cases presented so far have all concerned police misconduct. In the Še?i? case the ECtHR elaborated its reasoning developed in the Nachova case discussed above to also include acts perpetrated by private parties. Mr Še?i? alleged that the Croatian authorities had failed to undertake a thorough investigation of an attack of skinheads on him, and that this failure related to his Roma origin.
The ECtHR examined the case under the procedural aspect of Article 3 ECHR (prohibition of torture), which imposes upon EU Member States the duty to investigate allegations of severe ill-treatment thoroughly, effectively, and promptly. The ECtHR noted that the criminal proceedings had been pending in the pre-trial phase for almost seven years and the police had still not brought charges against anyone. The last activity of the police dated back to 2001. The ECtHR therefore established a breach of Article 3 ECHR.
The ECtHR reasoned that there is a duty to unmask the bias motive even if the act is perpetrated by private individuals and concluded that Article 14 the ECtHR had been breached by the Croatian authorities in conjunction with the procedural aspect of Article 3 ECHR.
The ECtHR developed this extension to acts perpetrated by private individuals in the Angelova and Iliev case by highlighting the need for Member States to put in place relevant criminal provisions. One evening in April 1996, in the town of Shumen (Bulgaria), Mr Angel Dimitrov Iliev who was of Roma origin and 28-years old at the time was attacked and severely beaten by seven teenagers. He was also stabbed several times. The victim was taken to hospital where he died the following morning. As later admitted by the assailants, the attack was motivated by the victim’s Roma ethnicity.
The ECtHR first observes that, while investigations were opened soon after the death of Mr Iliev and while the persons who had perpetrated the attack were identified within less than a day, no one was brought to trial over a period of more than 11 years. The ECtHR concludes that the Bulgarian authorities failed in their obligation under Article 2 ECHR to effectively investigate the death of Mr Iliev promptly and with the required vigour.
When it comes to Article 14, the Angelova and Iliev case closely resembles the Še?i? case. Indeed, here too the Court in the end finds that there has been a violation of Article 14 taken in conjunction with the procedural aspect of Article 2 of the Convention.
However, in addition to what is said in the Še?i? case, the ECtHR now also raises the question whether the Bulgarian legal order “provided adequate protection against racially motivated offences” and observes that Bulgarian law “did not separately criminalise racially motivated murder or serious bodily injury … nor did it contain explicit penalty-enhancing provisions relating to such offences if they were motivated by racism”. This reasoning could be useful to explain why the EU framework decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia contains in Article 4 a specific duty for Member States to ensure that racist and xenophobic motivation is considered an aggravating circumstance, or, alternatively that such motivation may be taken into consideration by the courts in the determination of the penalties.
It is noteworthy that the ECtHR in this case formulated an obligation for legislators to guarantee that victims of bias-motivated crimes can rely on and, if necessary, assert their right – under Article 14 ECHR – to differential treatment compared to victims of non-bias-motivated crimes.
A key case on the topic of bias motivated harassment was the R.B. case. In 2011 several right-wing groups organised an anti-Roma rally in Gyöngyöspata, the village where the applicant, who was of Roma origin, lived. During the rally four men yelled racist insults at the applicant, who was in her garden together with her child and some acquaintances, and threatened her with an axe. The applicant lodged a criminal complaint about the incident. However, the ensuing investigations were ultimately discontinued. The ECtHR clarified that acts of violence which did not reach the threshold necessary for Article 3 may nevertheless affect the private life of a person, in the sense of ethnic identity, within the meaning of Article 8 of the Convention when a person makes credible assertions that he or she has been subjected to harassment motivated by racism, including verbal assaults and physical threats. There were therefore grounds to believe that it was because of her Roma origin that the applicant had been insulted and threatened. Thus, it had been essential for the domestic authorities to conduct the investigation in that specific context, taking all reasonable steps with the aim of unmasking the role of racist motives in the incident. The necessity of conducting a meaningful inquiry into the discrimination behind the incident was indispensable given that it was not an isolated case but formed part of the general hostile attitude against the Roma community in Gyöngyöspata. Despite this, the domestic authorities completely disregarded the racist motives behind the attack. Moreover, the legal provisions in force at the material time provided no appropriate legal avenue for the applicant to seek remedy for the alleged racially motivated insult. Therefore, the respondent State’s criminal-law mechanisms as implemented in the instant case were defective to the point of constituting a violation of the respondent State’s positive obligations under Article 8 of the Convention. The conclusion to be drawn is that the reference point for the concept of hate crime from a fundamental rights point of view is not actual criminal law as it exists in a particular Member State at a given moment in time, but the positive obligations of the Member State to enact and effectively enforce suitable criminal law to protect the fundamental rights of individuals under fundamental rights law.