Thursday, 6 February 2014

Sabalić v Croatia - newly communicated case

The European Court of Human Rights has communicated the complaint in Sabalić v Croatia

The complaint concerns the lack of an appropriate procedural response by domestic authorities following to an act of violence by a private party motivated by antipathy towards homosexuality.

The applicant suffered an attack in a bar by a man to whom she had disclosed her (homo)sexual orientation. She was hit and kicked all over her head and body causing her multiple contusions on the head and forehead, face, lips, neck, chest, palms of her hands and her knees. During the attack, the man shouted that all lesbians should be killed. 

The attacker of the applicant was prosecuted for minor charged and subject to a fine of 40 Euros.

In the Croatian courts the applicant unsuccessfully complained that domestic authorise had failed to take appropriate action against her attacker.

Complaint to the Court

The applicant complains, under Articles 3 and 8 of the Convention, of the lack of an appropriate procedural response of the domestic authorities to an act of violence by a private party motivated by her sexual orientation.

She further complains, under Article 13 of the Convention, that she did not have an effective domestic remedy concerning her complaints.

Lastly, the applicant complains, under Article 14 taken in conjunction with Articles 3 and 8 of the Convention, that she was discriminated against on the basis of her sexual orientation.

Questions to the parties
  1. Have the State authorities complied with their procedural obligations under Articles 3 and 8 of the Convention?
  2. Did the applicant have at her disposal an effective domestic remedy for her complaints under Article 3 and 8 of the Convention, as required by Article 13 of the Convention?
  3. Has the applicant suffered discrimination on the grounds of her sexual orientation, contrary to Article 14 of the Convention read in conjunction with Articles 3 and 8 of the Convention?
An opportunity to evolve Article 3

My opinion is that this complaint offers the Court an important opportunity to evolve its Article 3 jurisprudence in respect of sexual orientation discrimination. 

The Court could not only find a procedural violation of Article 3 in respect of the violence suffered by the applicant, but also a violation of Article 3 taken in conjunction with Article 14 because the violence was motivated by her sexual orientation.

Such an outcome would be significant, because it would send a clear message to all contracting states that they have a positive obligation to address inhuman and degrading treatment suffered by sexual minorities. 

Recognising the failure of domestic authorities to address homophobic violence as a violation of Article 3 (rather than Article 8) would be a much welcomed development. 


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