September 15, 2023
By Emma Várnagy
In this blog post, I discuss the case of Bódi and Others v Hungary (App.no.29554/17) declared inadmissible by the Court. The decision concerns the investigation of an anti-Roma hate crime with the potential involvement of a police officer. It is a disappointing decision because the Court’s case law on hate crime investigations has developed in a victim-oriented direction more so than its approach to cases of discriminative abuse committed by state agents (see e.g. posts on this blog about Oganezova v Armenia, Škorjanec v Croatia, and Balázs v Hungary, and the critique of the latter line of case law here, here, here, and here). The present case – concerning the role of an officer and a paramilitary group involved in a hate crime – therefore could have been ideal for further procedural clarifications in this particularly concerning area. Instead, the Court seems to have merely reviewed whether established basic principles have seemingly been ‘checked off’ the list, and satisfied itself that the Respondent State has met its obligations to investigate, even if unsuccessfully so, and rejected examining the case on the merits. My argument is one against such an overly procedural approach to investigative procedures, which only incentivises showcasing the existence of efforts, but which does not engage with their outcomes whatsoever.
As part of my PhD research, I have had the opportunity to consult domestic files and judgments as well as the application and observations submitted to the ECtHR in this case, and commentaries from the NGO representing the Applicants (for Hungarian speakers, see these here, here, and here). For this reason, I can highlight some elements of the case that the Court did not seem to reflect upon in its decision.
In 2014 the Applicants, four Romani men, were working in a forested area where they were attacked by a group of some ten hooded men dressed in the uniform of an extremist group, carrying batons, baseball bats, brass knuckles, and pepper spray. These elements had been discussed days before the attack in messages exchanged between Officer B and one of the perpetrators’ wife. The attackers shouted racist slurs, including ‘dirty Gypsies, you will die, get on the ground!’ One of the attackers, who was instructing the perpetrators, and whom the applicants identified as their neighbour, was arrested the same day, and ultimately convicted of bodily assault and hooliganism, resulting in a suspended prison sentence. The investigation into the other perpetrators’ identities was eventually terminated.
The Applicants complained (under Articles 3 and 14 of the Convention) about the inadequacy of the investigation, particularly about the failure to investigate the perpetrators’ connection to an extremist group and the failure to address the role of the police officer in the incident.
The Court noted that the investigations lasted a considerable amount of time, but ultimately did not lead to the prosecution of the ‘unknown perpetrators.’ The sole attacker that could be identified was convicted of bodily assault and hooliganism. The Court further observed that the authorities eventually classified the offence as violence against members of a community (ie. hate crime) but ‘they did not consider it proven that the attack was racially motivated, rather than ensuing from a family feud’ (Para 27). In light of these considerations the Court found that ‘the investigative actions undertaken by the authorities constituted appropriate, albeit partly unsuccessful, steps’ (Para 28) and declared the application manifestly ill-founded.
The sole question the Court asked itself was this: ‘Was the investigation adequate for the purposes of Article 3 [prohibition of ill-treatment] alone and in conjunction with Article 14 [prohibition of discrimination]?’ (Communication of 3 October 2019). This question easily invites a simplistic answer, instead of a qualitative one. It is well established that the procedural duty read into these articles ‘to investigate possible racist overtones to an act of violence is an obligation of means rather than an obligation to achieve a specific result’ (Para 24 of Bódi and Others). What I find concerning is the preceding sentence in the decision: ‘[I]n practice, it is often difficult to prove racist motivation’ (Ibid) wherefore – it seems the Court is accepting – it would be an unreasonable burden on the authorities to expect so. In the ensuing short assessment, I will highlight four elements of the case which the Court bypassed, even though these, in my view could have warranted an examination on the merits. These are namely 1) the qualification of the offence, 2) the motives of the perpetrators, 3) the paramilitary affiliation of the unknown attackers, and 4) the role of Officer B. I realise that it is not the Court’s task to substitute its reading of the facts in place of those established by the domestic courts. However, a focus on procedural obligations should entail scrutinising the quality and effect of the steps taken rather than a mere deference to the existence of any investigative efforts. The elements highlighted below are particularly important, because they may shed light on the patterns of the domestic proceedings that make it clear why a focus on the volume of procedure as ‘an obligation of means’ can only lead to disappointing results for victims of anti-Roma violence.
The fact that the authorities eventually launched a procedure relating to the proper qualification of the incident as a hate crime was satisfactory for the Court. Such a check-list approach bypasses two important facts. First, and more generally: it is a common pattern in several Council of Europe Member States that first-responding officers often under-qualify hate crimes, which the Court too has noted with concern (see e.g. paras 106-9 in Sabalić v Croatia and paras 58 and 68 of Škorjanec v Croatia). Moreover, under-qualification creates evidentiary difficulties in itself, and even if the incident is eventually properly qualified, the later this happens, the more difficulties might arise in the investigation with the passage of time. In the present case the requalification of the incident as a hate crime happened 9 months after the attack. Second, and more specifically, the prosecutorial decision to qualify the incident as a hate crime in the present case had no practical effect, as the prosecutor did not order any additional investigative measures by the proper authority. This would have been necessary, because as held by the Court in Balázs v Hungary, the prosecuting authorities’ failure ‘to identify the racist motive in the face of powerful hate crime indicators (…) [may] impair the adequacy of the investigation to an extent that is irreconcilable with the State’s obligation in this field to conduct vigorous investigations’ (Para 75). In sum, the Court ticked off the requirement to launch seemingly proper procedures but it did not concern itself with considerations whether this was a meaningful or purely clerical exercise.
Even though the perpetrators shouted racial slurs during the attack and wore a uniform resembling that of an extremist organization, the Court accepted without hesitation that the domestic courts reached a well-reasoned conclusion in finding that a racist motive could not be proven (Para 27 of Bódi and Others). The argument that the Eger Court relied on was that the Applicants themselves indicated a personal conflict in relation to the known perpetrator (Eger Court as second instance Bf.246/2016/4) thereby excluding the possibility that the attack was bias motivated. This finding goes contrary to the principle the Court has established in Balázs ‘that not only acts based solely on a victim’s characteristic can be classified as hate crimes. (…) [P]erpetrators may have mixed motives, being influenced by situational factors equally or stronger than by their biased attitude towards the group the victim belongs to’ (Para 70). The question of motive becomes even more pressing in the case of the 7-9 unknown perpetrators. The fact that important hate crime indicators were not investigated due to the failures in properly qualifying and accordingly investigating the circumstances, could have prompted a merits assessment of the case. The Court could then have examined whether in fact the conclusion reached by the domestic court regarding the motive of the perpetrators was properly addressed, both on its own and in terms of the larger context of the case. Instead, in sum, the Court ticked off the requirement that there be a reasoned domestic decision. By accepting the conclusion in the case of the one known perpetrator, the Court essentially reinforced the ignorance concerning the larger context of the incident that was problematic in the domestic proceedings in the first place.
The main focus of the complaint submitted to the ECtHR concerned the 7-9 other perpetrators escaping prosecution. The fact that the overwhelming majority of the perpetrators can avoid accountability for a serious crime sends a very harmful message. Obviously, there are cases in which, despite all genuine efforts, all perpetrators cannot be identified. In the present case, however, the investigation into the identities of the 7-9 other attackers was terminated after 6 months. It is important to note that the termination of the investigation in the case of unidentified perpetrators was against criminal procedural rules prescribing the suspension of the proceedings. This failure may be interpreted as a cover-up of the involvement of officer B (discussed below) by terminating the case after the charging of only one perpetrator (Para 6 of the supplements to the Application pursuant to Rule 47.2(b)). Repeated petitions to refer the investigation of the incident, as a hate crime, to the relevant authority, and to investigate in particular, whether the crime was perpetrated, in connection with the paramilitary organisation, in a criminal organisation or association, were rejected by the district prosecutor. Even though the Applicants provided detailed descriptions of the uniform of the perpetrators as well as evidence from the website and Facebook page of the paramilitary group of posts about their ‘assistance’ in the village where the incident took place the prosecutor found that ‘based on the currently known facts, the appearance of Betyársereg [the paramilitary group] cannot be connected with the acts of L. [the only convicted perpetrator] in the present case’ (Eger District Prosecutor’s Office B.3368/2014/10 response to the attorney’s petition on 4 December 2014). The Court is clear in Abdu v Bulgaria that plausible evidence of extremist connections should trigger the obligation to conduct specific investigations (Para 50). Moreover, in Balázs, the Court specified that social media posts may also constitute such indicators (Para 75). While the Court itself had previously heard cases where the same extremist group harassed Roma in Hungary (see e.g. R.B. and Király and Dömötör), it makes no further mention of this element in its decision besides the description of the subject matter of the case. Instead, in paragraph 26, the Court enumerates the investigative steps the domestic authorities took in a check-list fashion and concludes that these were sufficient. In sum, the Court was satisfied that the domestic authorities made certain efforts, leaving the impression, however, that if there is enough volume, the quality of the actions is of secondary or no importance.
The second focus of the ECtHR application was the authorities’ failure to address the role of police officer B, who, days before the attack, exchanged text messages with L.’s wife about ‘smashing up’ the Applicants, offering his help acquiring pepper spray, and asking his colleagues to harass the Applicants (Para 13 of Bódi and Others). The Application, subsequent observations, supplements, and annexes detail the numerous shortcomings in this regard through several pages. In spite of this, B’s role is only mentioned in the Court’s decision once when stating the Applicants’ complaints. In sum, the Court seemingly did not pick up on this element of the complaint at all, let alone take the opportunity to clarify specific elements of the investigative procedure relating to the potential role of a police officer. In Lakatošová and Lakatoš v Slovakia (concerning a racist murder committed by an off-duty officer), the Court already highlighted the importance of proper measures that ‘secure accountability in practice (…), maintain public confidence in the authorities’ adherence to the rule of law, and prevent any appearance of collusion in or tolerance of unlawful acts’ (Para 74). The Court could have specified in a merits assessment of the present case what these should entail exactly. The message the domestic proceedings convey is that if the alarming conduct of police officers does not warrant any consequences whatsoever, there really is no hope for justice for marginalised victims of abuse. It is precisely for this reason that the Court created specific procedural obligations under Article 3 and correspondingly under Article 14, which it should not lose sight of.
While it is clear that the Court’s role is not to act as a court of fourth instance and that it must carefully respect its subsidiary role, the level of procedural deference – particularly in cases where procedures tend to exclude and dismiss complaints by marginalised people – pays lip service to the Court’s role as guardian of the rights of the most vulnerable. Accepting that racism is hard to prove, and therefore not scrutinising the merits of investigative procedures, essentially means succumbing to states where antigypsyism is prevalent and unchallenged. This is all the more worrying as the Court seems to increasingly reject very alarming allegations which in their sheer number signify patterns of institutional racism (see e.g. most recently Kováčová and Others v Slovakia). By scrutinising the four elements highlighted above in a merits assessment instead of brushing over them in an admissibility decision, the Court could have demanded more from State authorities than a mere check-list exercise.