Škorjanec v Croatia: victims of racist hate-crime “by association” protected by ECHR

When criminal offences are committed out of hate towards people with a particular skin color, gender, religion, sexual orientation, etc; this hate component is often considered to be an aggravating factor leading to a higher penalization of the crime. The primary victims of these hate crimes are the people who actually possess one those characteristics. Hate however often extends to people who do not have any connections with these characteristics, but who are perceived as belonging to a group having these characteristics. An example is Sikhs who are perceived as Muslims and as a consequence have been victim to islamophobia. A third group of potential victims of hate crimes are people who are associated or affiliated with others who actually or presumably possess (one of) these characteristics. This could for example be through family ties, friendship, membership to some organisations etc. In the case of Skorjanec v. Croatia, the European Court of Human Rights is confronted with this last category of hate crimes This case concerns in particular a possible racist hate crime by association.    

The facts

On 9 June 2013, the applicant, Ms Škorjanec, was walking in a market in Zagreb with her partner who is of Roma origin. In a confrontation with two other market visitors, the applicant’s partner was racially insulted by the two men and physically attacked and chased. Strong racist comments such as “You should all be exterminated, I f*** your Gypsy mother” were made towards the applicant’s partner. The applicant, who tried to help her partner, was also seriously beaten. During the domestic proceedings the applicant’s partner maintained that the assailants also referred to his ethnic origin while attacking the applicant. (§21)

The two men were prosecuted and convicted for the hate crime committed towards the applicant’s partner. In that procedure however, the applicant was only considered as a witness and not as a victim. She lodged a criminal complaint arguing that she was also a victim of a hate crime. In this procedure she alleged that the assailants called her a “b**ch who had a relationship with a Roma man and that she would be beaten”.(§23) The applicant’s criminal complaint was however rejected by the State Attorney’s office stating that “there is no indication that S.K. and I.M. inflicted injuries on Maja Škorjanec because of hatred towards Roma, as she is not of Roma origin”. (§26)

Before the ECtHR, Ms. Škorjanec complained under article 3, 8 and 14 ECHR about the failure of the Croatian authorities to protect victims of hate crimes by association. Croatia denied that the applicant was a victim of a racist hate crime and considered her as “a collateral victim [who] had been attacked only after she had tried to help [her partner]”.(§51)

The judgment

The Court mainly examines the case under article 3 taken in conjunction with article 14 ECHR. Referring to its previous case law, the Court reiterates “that when investigating violent incidents triggered by suspected racist attitudes, the State authorities are required to take all reasonable action to ascertain whether there were racist motives and to establish whether feelings of hatred or prejudices based on a person’s ethnic origin played a role in the events” especially since it is “extremely difficult to prove a racist motive”. (§53-54) Importantly, the Court points out that this obligation

“concerns not only acts of violence based on a victim’s actual or perceived personal status or characteristics but also acts of violence based on a victim’s actual or presumed association or affiliation with another person who actually or presumably possesses a particular status or protected characteristic.” (§56)

In the present case the Court finds, in the first place, that the Croatian criminal law offers sufficient protection for victims of hate crimes by association, since it includes a special provision for hate crimes considering it an aggravating form of criminal offences and this provision does not require the victim to personally hold a protected characteristics such as ethnic origin.(§60-61)

The Court however finds that the authorities fell short in their obligation to investigate the issue. First of all the Court criticizes the authorities’ failure to carry out a thorough investigation on the link between her partner’s origin and the assault committed against her and the fact the applicant was treated as a mere witness in her partner’s case. The Court further points to the authorities’ insistence on the fact that the applicant was not of Roma origin and failed to investigate whether the applicant was perceived as being of Roma origin. The Court therefore concludes that the authorities failed to submit the applicant’s case to the necessary scrutiny and finds a violation of article 3 (with regard to the procedural aspect) in conjunction with article 14.

Hater’s crimes

The category of people who are victim of hate crimes by association or affiliation is an often-overlooked category, as was also observed by the Organization for Security and Cooperation in Europe (OSCE). (§33) Although the main victims of hate crimes remain the people who actually possess one of the protected characteristics, it is to be expected that people who are perceived as belonging to a protected group or who are affiliated or associated to certain groups will increasingly become victims of hate crimes. Indeed, not only does globalisation lead to more diversity in society and also more mixed friendships and families, but it can also not be denied that we live in a climate of rising populism, hatred and phobias of all kinds. Only recently two men were killed and another man injured in Portland (US) when they wanted to protect two Muslim girls who were assaulted by a racist on the train. These men were not Muslim. The fact that they wanted to protect two young victims of racism was sufficient for the perpetrator to attack and kill them.

With this judgment, the Court makes clear that in assessing hate crimes, it is not the background of the victim that is essential, but the nature of the hate of the perpetrator. So whether you are attacked because you have a skin colour, religion or sexual orientation someone else doesn’t like, or whether you are perceived as belonging to one of those groups, or whether you just love someone who possesses one of those characteristics or whether as an activist or as a responsible human being, you protect someone possessing one of the protected criteria; it doesn’t matter. From a human rights law perspective, haters’ hateful actions should not go unpunished.