HANOVS v. LATVIA, (Application no. 40861/22), 18 July 2024
Citation: HANOVS v. LATVIA, (Application no. 40861/22), 18 July 2024
Rule of thumb : Is failure to prosecute & sufficiently punish a person for a criminal offence a violation of the ECHR? Yes, failure by a state to prosecute & sufficiently punish a person for a serious crime is a violation of Articles 3 & 8.
Facts: The basic facts of this case were that Hanovs was a male & walking along the street waist to waist in an intimate manner with his partner. 2 males began aggressively shouting at them & making homophobic slurs. This became overly aggressive where the Hanovs & his partner had to take cover in a shop & phone the Police. The 2 individuals were only given minor breach of the peace fines by the Latvian Police for this – the type given for loutish drunken hooliganism in Latvia.
Parties argued: Hanovs argued that this was completely disproportionate to the severity of the criminal attack he suffered, and was a breach of Articles 3 & 8, especially when read in conjunction with Article 14.
Judgment:
‘51. It is not within the Court’s remit to determine whether that narrow interpretation of the criminal-law provisions accurately reflected the requirements of domestic law and judicial practice or, in other words, whether the failure to bring criminal charges against JP resulted from deficiencies in the legislation or from its incomplete application by the prosecuting authorities. Nonetheless, the fact remains that, even after the applicant exhausted all domestic appeals to hierarchically superior prosecutors, the perpetrator was neither charged nor prosecuted for the hate-motivated attack.
52. The Government placed emphasis on the fact that JP was found guilty of misconduct in the administrative-offence proceedings and was fined EUR 70. The Court considers, however, that recourse to this type of proceedings is not compatible with the domestic authorities’ commitment under the Convention to ensure that homophobic attacks are adequately addressed and effectively deterred. This conclusion is primarily based on two reasons. First, the administrative-offence proceedings did not address the hate element of the attack against the applicant (compare Sabalić, cited above, § 108). Second, the leniency of the sanction was in manifest disproportion to the severity of the act, in terms of both its theoretical maximum and the fine that was actually imposed, which was at the lowest limit of the applicable scale (ibid., §§ 98(iii) and 110, and paragraph 23 above). By resorting to administrative-offence proceedings in the present case, the domestic authorities trivialised the incident, treating a hate-motivated attack as equivalent to minor disturbances of public order, such as a drunken brawl. This approach suggests a failure to provide a robust response to an attack motivated by the applicant’s sexual orientation, fostering a sense of impunity for hate-motivated offences rather than affirming a clear and uncompromising stance against such acts (ibid., § 111).
53. The Court concludes that the respondent State failed in its obligation under Articles 3 and 8 of the Convention, read in conjunction with Article 14, to provide adequate protection for the applicant’s dignity and private life by ensuring the effective prosecution of the attack against him, while taking into account the hate motive behind the attack. The Court emphasises the crucial importance for Contracting States to address impunity in cases of hate crimes, as they pose a significant threat to the fundamental rights protected by the Convention (see Sabalić, cited above, §§ 95 and 115, and Association ACCEPT and Others, cited above, § 127). Failure to address such incidents can normalise hostility towards LGBTI individuals, perpetuate a culture of intolerance and discrimination and encourage further acts of a similar nature.
54. There has accordingly been a violation of Articles 3 and 8 of the Convention, read in conjunction with Article 14’.
Judges: Mattias Guyomar, President; Lado Chanturia; Carlo Ranzoni; Mārtiņš Mits; Stéphanie Mourou-Vikström; Kateřina Šimáčková; Stéphane Pisani.
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.