CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 février 2021

.s800EAC49 { font-size:12pt } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s76CF415B { page-break-before:always; clear:both } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s93548B55 { text-align:justify; font-family:Arial; font-weight:bold; list-style-position:inside } .s13783063 { width:6.24pt; font:7pt 'Times New Roman'; display:inline-block } .s3537C2D6 { font-weight:normal }   Communicated on 9 February 2021 Published on 1 March 2021   FIRST SECTION Application no. 58207/14 Stanislaw BEDNAREK and others against Poland lodged on 17 August 2014 STATEMENT OF FACTS The first applicant, Mr Stanisław Bednarek, and the second applicant, Mr   Dawid Durejko, are Polish nationals who were born in 1991 and live in Warsaw. The third applicant, Mr Vyacheslav Melnyk, is an Ukrainian national who was born in 1992 and lives in Warsaw. At the material time, the first and the third applicants were a couple. The circumstances of the case The facts of the case, as submitted by the applicants and as derived from the documents issued in the course of the criminal proceedings, may be summarised as follows. On 1 January 2013, at about 3 a.m., the three applicants were assaulted while walking in one of Warsaw’s main streets with a female friend, K.K. The first and the third applicants were holding hands. After the fight, the first applicant complained to the police that he had an aching face and a bleeding nose. The second applicant complained that he received some punches during the brawl, without sustaining any injuries. According to his submission to the police he did not consider himself a victim in the case. He stated that he had feared for his life in the light of the threats uttered by the M. brothers and A.M. It is not known whether any injuries were sustained by the third applicant. On 1 January 2013 at 3.10 a.m., Pi.M., Pa.M and A.M. were stopped by police officers Mi.W and Ma.W. Pa.M. and A.M. tested as inebriated. Pi.M. refused to take an alcohol test. Pi.M., Pa.M. and A.M. had not reported any injuries. Two incident reports ( notatka urzędowa ) were prepared by the police. It is noted in these documents that the first and the second applicants had submitted that the impugned attack was motivated by homophobia and that swear words and homophobic threats had been uttered. The case file does not contain any other documents from the investigation phase of the proceedings. Later that day, Pa.M. was heard by the police as a suspect. On 18 February 2013 the Warsaw-Centre District Prosecutor ( Prokurator Prokuratury Rejonowej ) filed a bill of indictment against Pi.M., Pa.M. and A.M., accusing them of the offences of battery and uttering threats. The case was registered with the Warsaw-Centre District Court ( Sąd Rejonowy ). The applicants were given the status of auxiliary prosecutors ( oskarżyciel posiłkowy ). On 16 May 2013 the domestic court heard the accused. All three applicants were present at that hearing, accompanied by their lawyer. The applicants and K.K. testified at the hearing on 14 August 2013 in the presence of the lawyer representing them. On 14 August 2013 the Warsaw-Centre Regional Court convicted all three accused of battery and Pa.M., additionally, of uttering threats. All three were sentenced to one year’s imprisonment and a fine of PLN   100   (approximately EUR 25) to be paid to each applicant. All three prison sentences were suspended for three years. The first-instance court based its judgment on the testimony of all three applicants and of K.K. and on the submissions of A.M., Pa.M. and Pi.M. The domestic court considered that evidence only partly reliable in so far as each party to the fight had clearly recounted the relevant events in a subjective manner, blaming the adversary for the assault; in so far as the witnesses and the accused altered their accounts during the proceedings and in view of the development of the events. The domestic court also heard the two policemen who had intervened and obtained all incident reports (of the arrest, search and of blood alcohol testing). The first-instance court attached the greatest value to K.K.’s testimony because she had been the only person not to have actively participated in the brawl and to have observed it from the sidelines, and to the applicants’ earlier version of events as it had been given shortly after the incident. The first-instance court’s reasoning is nineteen pages long and it contains detailed references to various items of contradictory or corroborating evidence. The domestic court thus established the following sequence of events and made the following assessment of the accuseds’ intent. Pi.M., who was in the state of intoxication, had maliciously accosted the first and the third applicants while walking, breaking their grasp and calling them “faggots”. In that way he had shown his disapproval of their sexual orientation. He had then walked on. Even though Pi.M.’s behaviour was, in the domestic court’s opinion, condemnable, it did not show that the accused had already at that point decided to beat the applicants up because of their sexual orientation. The fact that he had refrained from immediately attacking the applicants instead shows that his intention at that point was only to annoy them out of spite. The first applicant had then turned around and said something to Pi.M. That comment had aroused aggression in Pi.M., who had been drinking that night. Pi.M. thus attacked the first applicant. The first applicant had fought back. At that point, neither of the remaining applicants, nor Pa.M. and A.M., had taken part in the struggle. The second and third applicants had tried to separate the two fighting men. Pa.M. had caught up with the group. The M. brothers were the attacking party. They punched all three applicants in the head and the face. At that point A.M. ran towards the third applicant and held him by the throat against a tree. The rest of the time, she had been standing to the side, insulting the applicants. The brawl had stopped and the accused had started to walk away, one of them carrying the first applicant’s bag. The second phase of the incident had started when the first applicant, followed by the second and the third applicants, had run after Pa.M. and snatched his bag from him. Pa.M. had automatically reacted by turning round and dealing the applicant a blow with the arm with the cast on. Subsequently, Pa.M. had continued hitting the first applicant. His brother, Pi.M., had also joined in. At some point the first applicant had fallen or been knocked to the ground and he continued to be hit and kicked by the M.   brothers. The second applicant had tried to pull the first applicant out of the brawl. On this occasion he himself received several blows. When the accused were stopped by the police, Pa.M. had called the applicants “faggots” and threatened to knock their teeth out and beat them up. The domestic court noted that the slang word employed by Pa.M. ( “zajebać” ) meant either “hitting someone” or “stealing”. It was concluded that the expressions used by Pa.M. constituted threats to harm someone physically. The first-instance court qualified the incident as battery since the accused had clearly been the aggressors. The threats made by Pa.M. were qualified as a separate offence. The domestic court analysed the elements of the latter offence, taking into account the offensive wording employed by the accused. As to the motivation of the accused, the domestic court found that Pi.M. had accosted the applicants to show his disapproval of their sexual orientation. It was with that motive that Pi.M. had walked in between the first and third applicants, breaking their grasp. The direct cause of the battery itself, however, had been Pi.M.’s irritation with the first applicant’s remark, made as he had carried on walking. The domestic court considered that the accused’s anger had been clearly unjustified but it could nevertheless have been at the origin of Pi.M.’s attack, bearing in mind his state of intoxication. In the Court’s view, in the circumstances of the case and especially the state of intoxication and the resulting aggressive behaviour, the Pi.M.’s assault would have taken place whatever the sexual orientation of the victim. The domestic court thus concluded that the direct motive for the applicant’s battery itself was not homophobia but rather an urge to teach the applicants a lesson for the comment which one of them had made. The domestic court further observed that Pa.M’s main’s motive in joining the fight was to help and assist his brother, Pi.M., even though their behaviour had a clear homophobic dimension. A.M. was also motivated by providing help to Pa.M. and Pi.M. Deciding on the sentence, the domestic court emphasized that the factual circumstances established by it were an aggravating factor against the accused. It further observed that the level of the accuseds’ culpability was high since they were sane, adult and had acted with the intent to assault and threaten the applicants. The offences had been committed with a direct intent and caused serious social harm because the applicants’ life and limb had been put in danger. The applicants had received blows to the head, face and body, they had been insulted and had felt further threatened. Less harm had been inflicted on the third applicant by A.M. The court also took into consideration the financial situation of the accused. The applicants appealed arguing, inter alia, that the first-instance court had erred in rejecting the argument that the battery had, from the beginning until the end, been motivated by homophobia, and in ordering a disproportionately lenient sentence. The applicants did not question other factual findings made by the district court. On 14 February 2014 the Warsaw Regional Court ( Sąd Okręgowy ) upheld the first-instance judgment. The appellate court held in particular that the evidence available, and in particular K.K.’s testimony, did not confirm the allegation that the acts committed by the accused had been motivated by hate, prejudice or discrimination against persons of a different sexual orientation. The court observed that the fines imposed could appear low but they reflected the financial situation of the accused who did not have any permanent job. Relevant domestic law and practice Article 32 of the Polish Constitution sets out the principle of equality before the law and the general prohibition of discrimination on any grounds. It reads as follows: “1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities. 2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.” The so-called hate crimes or discrimination are regulated under the Polish Criminal Code ( Kodeks Karny ) in Article 119 § 1. The provision in question reads as follows: “Whoever uses violence or makes unlawful threats towards a group of people or towards a particular person on the grounds of their national, ethnic, racial, political or religious affiliation, or on the grounds of lack of religious beliefs, shall be subject to imprisonment from three months up to five years.” Article 158 of the same code regulates the generic offence of battery in the following terms: “§1 Whoever is involved in a brawl or a beating, which exposes a person to the immediate danger of death or of [mild, medium or grievous bodily injury], shall be punished by imprisonment for up to three years. §2 If the consequence of a brawl or a beating is serious detriment to human health, the offender shall be punished by imprisonment from six months to eight years. §3 If the consequence of a brawl or a beating is the death of a person, the offender shall be subject to imprisonment for from one to 10 years.” Article 190 of the Criminal Code regulates the generic offence of making threats in the following terms: “§1 Whoever threatens another person with committing a criminal offence to the detriment of that person or of that person’s close ones, where the threat raises a credible fear that it will materialise, shall be punished by a fine, restriction of liberty or imprisonment for up to two years. §2 The prosecution [of this offence] shall be at the request of the victim.” Article 53 of the Criminal Code pertains to the system of punishment and punitive measures. “§1 A court shall impose a [discretionary] punishment within the limits provided for by law and with caution that the suffering [resulting from the punishment] does not exceed the degree of the criminal responsibility, taking into account the degree of social harmfulness of the act and the objectives of prevention and education which are to be achieved in relation to the sentenced person, and of the need to shape legal awareness in society. §2 The court imposing a punishment shall take into account, in particular[:] the motivation and the conduct of the offender, especially if the [victim] was a vulnerable person because of his or her age or health; [whether] the offence was committed jointly with a minor; the type and the degree of infringement of the obligations imposed on the offender; the nature and the dimension of the negative consequences of the offence; the personal characteristics and circumstances of the offender; his or her lifestyle prior to the commission of the offence; [the offender’s] behaviour after the commission of the offence, in particular [his or her] attempts to [restore] ... a sense of social justice; and the victim’s behaviour. ...” COMPLAINTS The applicants relied on Articles 3, 6, 13 and 14 of the Convention. They complained of the State’s failure to investigate adequately their criminal complaints concerning the acts of violence allegedly motivated by hatred towards the LGBTI group to which they belonged. In particular, when conducting the investigation and the court proceedings, the authorities had not taken into account the fact that the offences against the applicants had been motivated by their sexual orientation. The authorities had therefore failed to meet the procedural obligations enshrined in Articles 3 and 14 of the Convention. The applicants also complained of the lack of adequate legislative and other measures to prosecute and to combat hate crimes motivated by the victims’ sexual orientation. QUESTIONS TO THE PARTIES 1.     Have the State authorities complied with their procedural obligations under Article 3 of the Convention alone and in conjunction with Article   14 of the Convention?   In particular:   (a)     Have the domestic authorities specifically addressed the allegedly discriminatory– homophobic – element of a violent offence against the applicants in the relevant investigation and proceedings. (see, mutatis mutandi s, Identoba and Others v. Georgia , § 77)?   (b)     As regards the alleged the deficiencies of the relevant domestic legal framework, has the Polish legislation ensured to the applicants an adequate level of protection that should be afforded to the victims of homophobic violence by private parties (see, mutatis mutandis , Abdu v. Bulgaria , §§   41)?   c) Have the alleged deficiencies of the relevant legal framework undermined the effectiveness of the domestic authorities’ procedural response to the impugned violence with homophobic overtones (compare M.C. v. Bulgaria , § 182, and C.N. v. the United Kingdom ) ?   2.     Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 3 and 14 of the Convention, as required by Article 13 of the Convention?   3.     Have the applicants suffered discrimination on the grounds of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Articles 3 and 13 of the Convention? APPENDIX       Stanislaw BEDNAREK is a Polish national who was born in 1991, lives in Warsaw     Dawid DUREJKO is a Polish national who was born in 1991, lives in Warsaw     Vyacheslav MELNYK is an Ukrainian national who was born in 1992, lives in Warsaw