The obligation to unmask bias motives in selected ECtHR case law
This paper will argue that hate crimes differ from other crimes from a fundamental rights point of view.
The guiding questions essential to grasp the peculiarities of hate crime from a fundamental rights point of view are:
• Why should state institutions – police, criminal justice system and policy makers – care particularly about hate crime?
• If a person abuses another, why does it make a difference whether the offence was motivated by prejudice, as is the case with hate crimes, or by other motives, such as anger, indifference or greed?
The analysis below will show that the paradigm shifted at the ECtHR in Strasbourg from 2005 onwards and the ECtHR developed a consistent line of jurisprudence that hate crime is different from other crime from a fundamental rights point of view insofar as it entails additional duties for the state compared to other crimes. For all crimes, the ECtHR postulated also before 2005 a positive duty for an effective investigation. For hate crime, the case law of the ECtHR postulated after 2005 an additional positive duty related to the motive of the crime: Article 14 ECHR is to be read as obliging EU Member States to render visible (or as the ECtHR says “unmask”) bias motives leading to criminal offences. This paper will show that over time, the ECtHR has expanded this line of jurisprudence to cover actions of private parties, other forms of harm, a variety of bias motives and, finally, bias motives by association.
The analysis of the jurisprudence of the ECtHR on hate crime offered by this paper will also be helpful to understand why states have a human rights obligation to pinpoint bias motives of criminal offences. It is this approach of the ECtHR which drives the policy drive to highlight publicly the bias motivation of hate crime in contrast to other possible motivations of other crimes, both in open court and through official statistics.
Finally, the analysis of the jurisprudence of the ECtHR on hate crime since 2005 will prove useful to interpret relevant EU legislation in the field, namely the EU framework decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia, the Victims Directive 2012/29/EU and, as a soft law instrument, the Council Conclusions on combating hate crime in the European Union of 6 December 2013 as the jurisprudence is useful to understand what distinguishes hate crimes from other crimes from a fundamental rights point of view. The necessity to take the jurisprudence of the ECtHR into account when interpreting the concept of hate crime in the context of EU law flows also from Article 52/3 of the Charter of Fundamental Rights of the EU.
A paradigm shift in the jurisprudence of the ECtHR
Before this paper can capture what changed in 2005 in relation to the understanding of hate crime by the ECtHR, it is important to first examine a decision of the court from 2003. In May 2003, the ECtHR declared inadmissible the application of Mr Alex Menson and Others against the United Kingdom. Michael Menson was killed in a racist attack one night in January 1997. Four white youths set his back on fire while he was lying face down on the ground.
Because of several undisputed flaws in the police investigation, the applicants complained of a breach of the obligation of the United Kingdom under Article 2 (right to life) ECHR to ensure the conduct of an effective investigation into the attack on and the killing of Michael Menson. The applicants contended that the Metropolitan Police Service failed to treat the incident as a racially motivated crime notwithstanding the existence of clear evidence confirming this. The ECtHR ruled that the application was inadmissible because, in spite of weaknesses in the initial phase of the investigation, all four culprits had ultimately been convicted in 1999 and received heavy prison sentences.
Thus, this decision shows that in 2003 the ECtHR treated hate crimes like all other crimes and did not postulate an additional positive duty to unmask the bias motive. For the ECtHR in 2003, the fact that the crime had been effectively investigated in the sense that the perpetrators had been ultimately convicted even though the conviction did not take into account the racist motivation of the crime, was sufficient. The ECtHR in 2003 did not postulate a separate duty to unmask the bias motive of the crime.
The ECtHR commented in a side remark that “where that attack is racially motivated, it is particularly important that the investigation is pursued with vigour and impartiality, having regard to the need to reassert continuously society’s condemnation of racism and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence.” It is noteworthy that the ECtHR invokes two arguments in favour of this particular importance of criminal investigations in cases of racist motivation: the need to reassert continuously society’s condemnation of racism; and, the importance of maintaining the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence.
Nevertheless, the ECtHR in 2003 did not conclude that the absence of an effective investigation into the bias motive of the crime constituted a violation of the ECHR. In 2003 the court was satisfied with an effective investigation into the crime, even if the bias motive was ignored. What mattered for the court was that the perpetrators had been identified and convicted. In 2005, an important shift in the jurisprudence of the ECtHR took place: the now famous Nachova case which was crucial to establish the separate duty under the ECHR to unmask bias motives.
On 19 July 1996, a member of the Bulgarian military police killed Mr Angelov and Mr Petkov, two 21-year old male Bulgarian nationals of Roma origin, during an arrest attempt. The Grand Chamber of the ECtHR delivered its judgment in July 2005.
Firstly, the Grand Chamber found that Bulgaria failed to comply with its obligations under Article 2 ECHR, in that the relevant legal framework on the use of force was fundamentally flawed. Mr Angelov and Mr Petkov, whose only offence was to be absent from their military service, were killed in circumstances in which the use of firearms was excessive. Secondly, the victims’ right to an effective criminal investigation into their killing was violated.
As regards Article 14 ECHR, the Grand Chamber concluded that there had been a violation of Article 14 ECHR too. As to the reasoning, the ECtHR interpreted Article 14 ECHR to comprise two components: one substantive and one procedural. The police and the prosecutor had sufficient information before them to alert them to the need to investigate possible racist overtones in the events that led to the death of the two men. The failure of the authorities to carry out such an investigation resulted in a violation of the procedural aspect of Article 14 ECHR, in addition to the violation of Article 2 ECHR. Thus, the ECtHR changed its line of argumentation applied in the Menson case and declared that there is a separate duty under the ECHR to unmask the bias motive. A violation of this duty now constitutes a separate violation of Article 14 ECHR.
The court further elaborated that this obligation to unmask the bias motive is “an obligation to use best endeavours”. “The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of” a bias motive.
The trigger for the obligation to unmask bias motives
In a string of cases the ECtHR elaborated under which conditions this additional duty is triggered and concluded that there is a need of sufficient evidence which would indicate a bias motivation.
In the case of Ognyanova and Choban v. Bulgaria the ECtHR had to deal with the death of Mr Stefanov who died in June 1993 in police custody after having fallen from a window on the third floor of the police station in the town of Kazanluk. Numerous injuries were found on his body. The investigation concluded that he had voluntarily jumped out of the window of the room where he had been brought for questioning, and that all his injuries had been the result of his fall. While the ECtHR found in 2006 that Bulgaria had violated the obligation under Article 2 ECHR to conduct an effective investigation into Mr Stefanov’s death, it was not convinced that the authorities had enough indications to alert them to the need to investigate possible “racist overtones” in the events that led to the death of Mr Stefanov.
The case of Vasil Sashov Petrov v. Bulgaria concerned again the life-threatening use of firearms by Bulgarian police officers attempting to arrest a young man of Roma origin, whom the officers suspected of having attempted to steal hens. The ECtHR again identified violations of Article 2 ECHR with regard to both the substantive and the procedural aspect of this provision. However, given that the incident happened during the night and under reduced visibility, the ECtHR had doubts as to whether the police officers had been aware that the suspect was of Roma origin. Hence, the ECtHR found that the authorities did not have sufficiently compelling reasons to investigate possible racist motives.
The ECtHR had to decide on another similar situation in the case of Mižigárová v. Slovakia, which concerned the death of Mr ?ubomír Šarišský, a Slovak national of Roma ethnic origin, who had been arrested by the police on suspicion of having stolen bicycles. At the time of the arrest, he was 21-years old and in good health, but he died in police custody. In this case the ECtHR, in assessing the procedural aspects of Article 14 ECHR along the lines established in the Nachova case, arrives to concluding that the authorities did not have enough evidence to suspect a racist motivation of the police officers involved. Attached to the judgment is the dissenting opinion of judge Björgvinsson who insisted that there was enough objective evidence available to the authorities to suggest a racist motive, such as reports that “show that police brutality in respect of persons of Roma origin was, at the relevant time, systemic, widespread and a serious problem in Slovakia”.
The expansion to violations of other rights
So far all cases of ECtHR discussed above concerned death cases under Article 2 ECHR, but the ECtHR expanded the same line of reasoning to include also violations of other rights, for example Articles 3 and 8.
The Bekos and Koutropoulos case concerned mistreatment. At the time of the incident, the two victims, Greek nationals of Roma origin, were 18-years old. They had been arrested by the police while attempting to break into a kiosk. In the course of questioning, they were severely abused. The evidence available to the ECtHR allowed it to conclude that the applicants had been subjected to inhuman and degrading treatment within the meaning of Article 3 ECHR.
In addition, the ECtHR, having regard to the lack of an effective investigation into the credible allegation made by the applicants that they had been ill-treated while in custody, considered that Article 3 had been violated also with regard to its procedural aspect.
In its assessment of Article 14 ECHR, the ECtHR follows closely the line of argument developed in the Nachova case. Aside from statements from international organisations and national human rights groups, the authorities had before them the sworn testimonies of the first applicant that they had been subjected to racial abuse by the police who were responsible for the ill-treatment. Despite this information, the authorities did not examine the question of racist motives of the investigating police officers. The ECtHR concluded that Article 14 ECHR was violated in its procedural aspect.
Another noteworthy case on the requirement to investigate the bias motivation of a crime is the Balázs case. The case concerned his complaint that the authorities had failed to conduct an effective investigation into a racist attack by a penitentiary officer against him. Mr Balázs lodged a criminal complaint against the penitentiary officer, describing the incident and submitting material he had found on the Internet, namely posts by the officer in a social network, according to which the night before he “had kicked in the head a gypsy lying on the ground”. The Public Prosecutor opened a criminal investigation on suspicion of the offence of “violence against a member of a group”. In July 2011 the Prosecutor discontinued the investigation for lack of evidence that the officer had attacked Mr Balázs out of racial hatred. The decision to discontinue the investigation was upheld in September 2011. In May 2012 the officer was convicted of disorderly conduct for becoming involved in a fight and was placed on a one-year probation. Relying on Article 14 (prohibition of discrimination) read in conjunction with Article 3 (prohibition of inhuman or degrading treatment), Mr Balázs complained that the authorities had failed to conduct an effective investigation into the racist attack against him, and in particular that they had not taken sufficient action to establish a possible racist motive for the assault. The ECtHR confirmed a violation of Article 14 read in conjunction with Article 3.
What flows from these initial cases is the obligation, whenever a situation indicates racist motives, for EU Member States to investigate the motivation behind violent offences with a view to unmasking and condemning bias motivation.
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.
The expansion to other bias motives
All case discussed so far concerned racism as a bias motivation. In a judgment rendered in the case of Milanovi? v. Serbia the ECtHR extended this line of jurisprudence also to cover violence motivated by the religious affiliation of the victim. The case concerned a series of violent attacks against the member of a Hare Krishna community.
The ECtHR considers “that, just like in respect of racially motivated attacks, when investigating violent incidents State authorities have the additional duty to take all reasonable steps to unmask any religious motive and to establish whether or not religious hatred or prejudice may have played a role in the events”.
The ECtHR also extended this line of jurisprudence to cover homophobic violence in Identoba and Others v Georgia. The case concerned a peaceful demonstration in Tbilisi in May 2012 to mark the International Day against Homophobia, which was violently disrupted by counter-demonstrators outnumbering the marchers. The court found that the attack was instigated by those with a hostile attitude towards the LGBT community in Georgia.
The court stated that the violence, which consisted mostly of hate speech and serious threats, but also some sporadic physical abuse in illustration of the reality of the threats, rendered the fear, anxiety and insecurity experienced by all thirteen applicants severe enough to reach the relevant threshold under Article 3 read in conjunction with Article 14 of the Convention. The court considered that due to reports of negative attitudes towards sexual minorities in some parts of the society, as well as the fact that the organiser of the march specifically warned the police about the likelihood of abuse, the law-enforcement authorities were under a compelling positive obligation to protect the demonstrators, including the applicants, which they failed to do. Lastly, the authorities fell short of their procedural obligation to investigate what went wrong during the incident of 17 May 2012, with particular emphasis on unmasking the bias motive and identifying those responsible for committing the homophobic violence. The court thus concluded that there had been a breach under Article 3 taken in conjunction with Article 14 of the Convention.
Another noteworthy case was Dordevic v Croatia which concerned the bias motivation of disability. The case concerned the complaint by a mother and her son with mental and physical disabilities that they had been harassed, both physically and verbally, for over four years by children living in their neighbourhood, and that the authorities had failed to protect them. The ECtHR found that the Croatian authorities had not done anything to end the harassment, despite their knowledge that the son had been systematically targeted and that future abuse had been quite likely. The ECtHR concluded that Article 3 ECHR had been violated. In respect of Article 14 the ECtHR found that internal remedies available in Croatia had not been exhausted and the complaint was therefore rejected in that respect. Strictly speaking the case is not a hate crime case because the perpetrators were primary school children and thus below the age of criminal responsibility, but the case is still mentioned here to illustrate the willingness of the ECtHR to consider the bias motivation of disability.
The case Virabyan v. Armenia concerned the torture of an opposition activist in police custody and bias motivation of political motivation. The Court also criticised the Armenian authorities for failing to conduct an effective investigation into Mr Virabyan’s allegations that his ill-treatment had been politically motivated.
Bias motives by association
In 2017, the ECtHR clarified in the case Škorjanec v Croatia that it is possible to suffer of a bias motivation by association. In June 2013, two men racially abused the applicant’s partner on the basis of his Roma origin, before attacking both him and the applicant herself. The two assailants were prosecuted and convicted on charges that included a hate crime against the applicant’s partner. However, the men were not charged for a racially motivated crime against the applicant herself. The authorities rejected her complaint of a hate crime, finding that there was no indication that the men had attacked her because of hatred towards Roma, as she is not of Roma origin. The applicant complained to the European Court of Human Rights of a lack of an effective procedural response of the Croatian authorities in relation to a racially motivated act of violence against her. The ECtHR ruled that under the ECHR, a person may be a victim of a violent hate crime not only when they have been attacked because they themselves have a certain characteristic – but also when they are attacked because they have an actual or presumed association with another person, who has (or is perceived to have) that characteristic. The ECtHR ruled that states have an obligation to recognise both types as hate crimes, and investigate them accordingly. However, in this case the Croatian authorities repeatedly failed to take the necessary care in identifying the violence against the applicant as a suspected hate crime and had violated Article 3 under its procedural aspect in conjunction with Article 14 of the Convention.
This paper has argued that the jurisprudence of the ECtHR has shifted after 2005 and this shift has led to the emergence of an investigation into possible bias motivations as an indispensable aspect of an effective investigation of any crime. The central aspect of this shift has been that the bias motivation of a crime is of crucial importance and needs to be effectively investigated as a legal requirement of binding fundamental rights standards. This shift is animated by two main arguments: first, the need to reassert continuously society’s condemnation of bias; and, the importance of maintaining the confidence of minorities in the ability of the authorities to protect them from the threat of biased violence and harassment. Thus, bias motivations needs to be effectively investigated to offer effective protection from discrimination. These are the central reasons why the effective investigation into the bias motivation of a crime is crucial and why bias motivations need to be publicly condemned. These are the reasons why a bias motivated crime cannot be simply treated as any other crime. Article 14 ECHR is therefore to be read as obliging EU Member States to render visible (or as the ECtHR says “unmask”) bias motives leading to criminal offences. The ECHR is binding for all Member States of the EU. This paper has shown that over time, the ECtHR has developed this line of jurisprudence to cover actions of private parties, other forms of harm, a variety of bias motives and, finally, bias motives by association.
Finally, the analysis of the jurisprudence of the ECtHR on hate crime since 2005 demonstrates how useful it is to interpret relevant EU instruments in the field, namely the EU Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia, the Victims Directive 2012/29/EU and, as a soft law instrument, the Council Conclusions on combating hate crime in the European Union of 6 December 2013. As none of these instruments actually defines the concept of hate crime, but all of these instruments simply presuppose it, the jurisprudence of the ECtHR is indispensable for its understanding. The requirement to take the jurisprudence of the ECtHR into account when interpreting the concept of hate crime in the context of EU law is not just sensible, but flows also from Article 52/3 of the Charter of Fundamental Rights of the EU and is therefore legally binding.