CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 janvier 2021

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text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .fixListIndent { list-style-position: inside }   FIRST SECTION CASE OF SABALIĆ v. CROATIA (Application no. 50231/13)     JUDGMENT   Art 14 (+ Art 3) • Discrimination • Conviction for minor offence and EUR 40 fine for violent homophobic attack, without investigating hate motives, and subsequent discontinuance of criminal proceedings on ne bis in idem grounds • Sentence manifestly disproportionate to gravity of ill-treatment • Unnecessary recourse to ineffective minor-offence proceedings capable of fostering a sense of impunity for acts of violent hate crime • Failure to investigate and to take into consideration hate motives in determining punishment amounting to “fundamental defects” in proceedings within the meaning of Art 4 P7 • No de jure obstacles to offering applicant appropriate redress by terminating or annulling unwarranted set of proceedings and effacing its effects, or re-examining the case   STRASBOURG 14 January 2021   FINAL   14/04/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sabalić v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Krzysztof Wojtyczek, President ,   Ksenija Turković,   Linos-Alexandre Sicilianos,   Alena Poláčková,   Erik Wennerström,   Raffaele Sabato,   Lorraine Schembri Orland, judges , and Renata Degener, Deputy Section Registrar , Having regard to: the application (no.   50231/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Pavla Sabalić (“the applicant”), on 26 July 2013; the decision to give notice to the Croatian Government (“the Government”) of the complaints concerning Articles 3, 8, 13 and 14 of the Convention and to declare inadmissible the remainder of the application; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by the non-governmental organisation Zagreb Pride, and jointly from the non-governmental organisations the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), the Advice on International Rights in Europe Centre (the AIRE Centre) and the International Commission of Jurists (ICJ), who were granted leave to intervene by the President of the Section; Having deliberated in private on 1 December 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicant’s complaint of a lack of an appropriate response of the domestic authorities to a homophobic act of violence by a private party against her. THE FACTS 2.     The applicant was born in 1982 and lives in Zagreb. She was represented by Ms A. Bandalo and Ms N. Labavić, lawyers practising in Zagreb. 3.     The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 4.     The facts of the case, as submitted by the parties, may be summarised as follows.         THE PHYSICAL ATTACK AGAINST THE APPLICANT 5 .     On 13 January 2010 the applicant was physically attacked in a nightclub in Zagreb where she was out with several of her friends. The attack ceased only after one of the applicant’s friends, I.K., used her gas pistol to frighten off the attacker. 6.     At about 6.00 a.m. a local police station of the Zagreb Police Department ( Policijska uprava zagrebačka – “the police”) was informed of the incident and two police officers immediately responded at the scene. 7 .     The relevant part of the police report on the findings at the scene of the incident reads: “When we arrived at the scene ... we found Pavla Sabalić ..., I.K. ..., I.D. ..., K.F. ..., E.N. ... and A.B. ... [personal details omitted]. By interviewing them and observing the scene of the incident, we established that the above-mentioned persons had arrived at [the nightclub] at around 4   a.m., where they stayed for about one and a half hours. While they were in the nightclub [the applicant] was approached by an unidentified man who started flirting with her but she constantly refused him. After the nightclub closed they were all standing in front of it and the man continued pressing [the applicant] to be with him. When she said that she was a ‘lesbian’ he grabbed her with both of his hands and pushed her against a wall. He then started hitting her all over her body and when she fell to the ground he continued kicking her. ...” 8.     The police soon identified the man as M.M. through the number plate of a car he had used to flee the scene. He was immediately apprehended and interviewed. 9.     According to a police report of 13 January 2010, M.M. confirmed having met the applicant but then he had learned that she was in the nightclub with her girlfriend. When the nightclub closed he had seen several girls having some dispute with his friend and as he tried to calm them all down he had pushed them with his hands. M.M. did not provide any further details, alleging that he could not remember them as he had been drunk at the time of the incident. The police also established that at the time of the incident M.M. had been in the nightclub with his friends, J.V. and A.K. 10 .     On the same day, at around 7 a.m., the applicant was examined in the accident and emergency department. The examination indicated a contusion on the head, a haematoma on the forehead, abrasions of the face, forehead and area around the lips, neck strain, contusion on the chest and abrasions of both palms and knees. The injuries were qualified as minor bodily injuries.      MINOR-OFFENCE PROCEEDINGS AGAINST M.M. 11.     Following the incident the police interviewed the applicant and M.M. and the other participants in the event in connection with M.M.’s physical attack. 12 .     On 14 January 2010 the police instituted minor-offence proceedings in the Minor Offences Court ( Prekršajni sud u Zagrebu ) against M.M. for a breach of the peace and public order. The relevant part of the charges reads: “On 13 January 2010, at around 5.45 a.m., in Zagreb ..., on the street in front of [the nightclub], according to the statements of the victim Pavla Sabalić ... and the witnesses I.K. ..., E.N. ..., K.F. ..., A.B. ... and I.D. [personal details omitted], the accused physically attacked Pavla Sabalić by grabbing her with both his hands and throwing her against a wall. The accused then started hitting Pavla Sabalić with his fists all over her body and afterwards he knocked her to the ground and continued to kick her. He was constrained from further action by I.K. and then he left the scene using a car ... The victim Pavla Sabalić sustained visible injuries on her head, which were classified by a doctor [in accident and emergency] as minor bodily injuries. Accordingly, a minor offence under section 13(1) and (2) of the Minor Offences against Public Order and Peace Act was made out.” 13 .     At a hearing on 20 April 2010 before the Minor Offences Court, M.M. confessed to the charges against him. No further evidence was taken and the applicant was not informed of the proceedings. 14 .     On the same day the Minor Offences Court found M.M. guilty as charged of a breach of the peace and public order and fined him 300   Croatian kunas (approximately 40 euros). 15 .     No appeal was lodged against the judgment and it became final on 15 May 2010.    CRIMINAL INVESTIGATION INTO THE APPLICANT’S ILL-TREATMENT 16 .     After realising that the police had failed to institute a criminal investigation, on 29 December 2010 the applicant lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office ( Općinsko državno odvjetništvo u Zagrebu – “the State Attorney’s Office”) against M.M. for the offences of attempted grave bodily injury (Article 99 §§ 1 and 4 of the Criminal Code) and violent behaviour (Article 331 § 2 of the Criminal Code), motivated by a hate-crime element (Article 89 § 36 of the Criminal Code), and the criminal offence of discrimination (Article 174 § 1 of the Criminal Code). The relevant part of the applicant’s criminal complaint reads: “On 13 January 2010, after he was flirting with Pavla Sabalić and after she had refused him saying that she had a girlfriend, around 5.45 a.m., in Zagreb [in front of the nightclub] [M.M.] physically attacked Pavla Sabalić by grabbing her with both his hands and throwing her against a wall ... and then hit her with his fists all over her body and afterwards he knocked her to the ground and kicked her. At the same time he was shouting: ‘You lesbian!’, ‘All of you should be killed!’, ‘I will f... you lesbian!’ and so on. E.N. attempted to restrain his attack by saying: ‘How can you beat a girl’, after which M.M. attacked E.N. by head-butting her, and then I.K. shot him with her gas pistol which made him cease the attack ...” 17.     On the basis of the applicant’s criminal complaint, the State Attorney’s Office ordered the police to investigate the applicant’s allegations. 18 .     An unauthorised note of the applicant’s police interview, dated 14   January 2011, indicates that the applicant confirmed her allegations as to the course of the events leading up to her attack, and stressed that she could no longer remember all the details but that she believed that the attack had been motivated by her sexual orientation. 19 .     In the further course of the police inquiry, the police interviewed the applicant’s friends I.K., I.D. and K.F., who confirmed the applicant’s version of the events. The police also interviewed A.K. and V.J., friends of M.M., who only confirmed that there had been some commotion but that they did not know any particular details. 20 .     On 28 April 2011 the State Attorney’s Office asked an investigating judge of the Zagreb County Court ( Županijski sud u Zagrebu – “the County Court”) to conduct a further investigation into the applicant’s complaints in connection with a reasonable suspicion that M.M. had committed the offences of attempted grave bodily injury and violent behaviour, motivated by a hate-crime element, and the criminal offence of discrimination against the applicant. 21.     During the investigation, the investigating judge commissioned an expert medical report, which classified the applicant’s injuries for forensic purposes as minor bodily injuries. The investigating judge further questioned the applicant, who reiterated her version of the events. 22.     The investigating judge also questioned M.M., who denied having deliberately attacked the applicant although he no longer remembered all the details of his discussion with her. During the questioning, M.M.’s defence lawyer informed the investigating judge that M.M. had been convicted by the Minor Offences Court on 20 April 2010 (see paragraphs 14-15 above). 23 .     On the basis of the findings of the investigating judge, on 19 July 2011 the State Attorney’s Office dismissed the applicant’s criminal complaint on the ground that M.M. had already been prosecuted in the minor-offence proceedings and that his criminal prosecution would contravene the ne bis in idem principle. The relevant part of the decision reads: “During the investigation the victim Pavla Sabalić was questioned as a witness and she provided a detailed and comprehensive account of the events as described in her criminal complaint against M.M. ... The description of the offences in the criminal complaint against M.M. lodged by the victim Pavla Sabalić ... shows that these offences have been dealt with by the judgment of the Zagreb Minor Offences Court ... of 20 April 2010. By that judgment M.M. was found guilty of a minor offence under section 13 of the Minor Offences against Public Order and Peace Act and the judgment became final. It follows that M.M. has already been found guilty in relation to the event, which has been, as such, adjudicated by the judgment of the Zagreb Minor Offences Court and therefore there is a negative procedural condition, that is to say a procedural impediment, to further criminal proceedings, since the matter is ‘ res judicata ’. Comparing the description of the event, and in view of the accusations contained in the victim’s criminal complaint, with the judgment of the Zagreb Minor Offences Court, by which the defendant has been found guilty in the minor-offence proceedings, it is obvious that it concerns the same event and the same acts of M.M. It follows that the facts constituting the minor offence for which the defendant has been found guilty are essentially the same as those which form the accusations in the victim’s criminal complaint. In these circumstances, the criminal proceedings would be conducted for the same offence, that is to say the same event, for which the defendant has already been finally convicted. In the case at hand the matter has been finally adjudicated, which follows from the interpretation of Article 31 § 2 of the Constitution, providing that ‘nobody can be tried or convicted twice in criminal proceedings for the same criminal offence for which he or she has been finally acquitted or convicted in accordance with the law’, as well as from the provisions of Article 4 of Protocol No. 7 [to the Convention] and Article 11 of the Code of Criminal Procedure, which proclaim the ne bis in idem principle. It therefore follows that the matter has been finally adjudicated, which is a negative procedural condition, that is to say a procedural impediment to further criminal proceedings, and as such excludes further criminal prosecution.” 24.     The State Attorney’s Office informed the applicant that she could take over the criminal prosecution as a private prosecutor by lodging an indictment with the Zagreb Municipal Criminal Court ( Općinski kazneni sud u Zagrebu – “the Criminal Court”). 25.     On 26 October 2011 the applicant took over the prosecution as a private prosecutor in the Criminal Court against M.M. on charges of attempted grave bodily injury (Article 99 §§ 1 and 4 of the Criminal Code) and violent behaviour (Article 331 § 2 of the Criminal Code), motivated by a hate-crime element (Article 89 § 36 of the Criminal Code), and the criminal offence of discrimination (Article 174 § 1 of the Criminal Code). She contended that the State Attorney’s Office had misinterpreted the law on the ne bis in idem principle and that, in the particular circumstances of her case, the matter had not been finally adjudicated. She also relied on the Court’s case-law concerning the authorities’ duty to investigate and effectively prosecute hate crime, arguing that the minor-offence proceedings had fallen short of those requirements. 26 .     The Criminal Court rejected the applicant’s indictment on 19 July 2012, endorsing the arguments of the State Attorney’s Office. 27 .     The decision of the Criminal Court was upheld on a subsequent appeal by the County Court on 9 October 2012. 28 .     On 5 December 2012 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), referring to the Court’s case-law concerning the State’s procedural obligation to investigate acts of violence and hate crime, and complaining of the ineffectiveness of the domestic authorities in addressing her complaints effectively. She also contended that the lower authorities had misinterpreted the relevant law on the application of the ne bis in idem principle and had thus erred in their assessment that the matter was res judicata . 29.     On 31 January 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the ground that in the impugned decisions the lower courts had not addressed any of the applicant’s rights or obligations. 30.     The decision of the Constitutional Court was notified to the applicant’s representative on 22 February 2013. RELEVANT LEGAL FRAMEWORK AND PRACTICE         RELEVANT DOMESTIC LAW     The Constitution 31.     The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows: Article 14 § 1 “Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.” Article 23 “No one shall be subjected to any form of ill-treatment ...” Article 31 § 2 “Nobody can be tried or convicted twice in criminal proceedings for the same criminal offence for which he or she has been finally acquitted or convicted in accordance with the law” Article 35 “Everyone has the right to respect for and legal protection of his or her private ... life ...”     The Criminal Code 32 .     The relevant provisions of the Criminal Code ( Kazneni zakon , Official Gazette no. 110/1997, with further amendments – “the 1997 Criminal Code”), applicable at the relevant time, provided: Article 8 “1.     Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney’s Office in the interest of the Republic of Croatia and its citizens. 2.     In exceptional circumstances the law may provide for criminal proceedings in respect of certain criminal offences to be instituted on the basis of a private prosecution or for the State Attorney’s Office to institute criminal proceedings following [a private] application.” Article 89 § 36 “Hate crime means any criminal offence under this Code that is committed as a result of hatred towards a person because of his or her ... sexual orientation ...” Article 98 “Anyone who inflicts bodily injury on another or impairs another’s health shall be fined or sentenced to imprisonment for a term not exceeding one year.” Article 102 “Criminal proceedings for the offence of inflicting bodily injury (Article 98) ... shall be instituted by means of a private prosecution.” Article 99 “1.     Anyone who inflicts grievous bodily harm on another or seriously impairs another’s health shall be sentenced to imprisonment for a term of between six months and three years. ... 4.     An attempt to commit the offence under paragraph 1 of this Article shall also be punishable.” Article 174 § 1 “Whoever on the basis of differences related to ... other status ... breaches basic human rights and freedoms recognised by the international community shall be sentenced to imprisonment for a term of between six months and five years.” Article 331 § 1 “Whoever degrades another person by subjecting them to violent abuse, ill ‑ treatment or particularly offensive behaviour in public shall be sentenced to imprisonment for a term of between three months and three years.” 33 .     On 1 January 2013 a new Criminal Code (Official Gazette no.   125/2011, with further amendments – “the 2013 Criminal Code”) came into force. Under Article 87 § 21 it enumerates hatred based on sexual orientation as one of the types of hate crime and provides that a hate-crime element to an offence will be taken as an aggravating circumstance in the sentencing. In addition, violence motivated by hatred is prescribed as an aggravating factor to offences involving violence (in particular, Article 117 – bodily injury; Article 118 – grave bodily injury; Article 119 – particularly grave bodily injury).     The Code of Criminal Procedure 34.     The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku , Official Gazette no. 110/1997, with further amendments), as applicable at the relevant time, provided the following: Article 2 “1.     Criminal proceedings shall only be instituted and conducted upon the order of a qualified prosecutor. ... 2.     In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences that may be prosecuted privately the qualified prosecutor shall be a private prosecutor. 3.     Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person. 4.     Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party may take his place as a private prosecutor under the conditions prescribed by this Act.” Article 11 “Nobody can be tried twice for an offence for which he or she has been tried and in respect of which a final court decision has been adopted.” Article 171 § 1 “All State bodies and legal entities are obliged to report any criminal offence subject to official prosecution about which they have been informed or about which they have otherwise learned.” Article 173 “1.     Criminal complaints shall be submitted to the competent State Attorney in writing or orally. ... 3.     If a criminal complaint was submitted before a court, the police or a State Attorney who was not competent in the matter, they shall forward the criminal complaint to the competent State Attorney.” Article 174 “1.     The State Attorney shall reject a criminal complaint by a reasoned decision if the offence in question is not an offence subject to automatic prosecution, if the prosecution is time-barred or an amnesty or pardon has been granted, or other circumstances excluding criminal liability or prosecution exist, or there is no reasonable suspicion that the suspect has committed the offence. The State Attorney shall inform the victim about his decision ... within eight days (Article 55) and if the criminal complaint was submitted by the police, he shall also inform the police. 2.     If the State Attorney is not able to ascertain the reliability of the submissions from the criminal complaint, or if he does not have sufficient information to ask for a judicial investigation, or if he has been otherwise informed that an offence has been committed, and particularly if the perpetrator is unknown, the State Attorney shall, if he is not able to do it himself, ask the police to collect all relevant information and to take other measures concerning the offence (Articles 177 and 179). ...” Article 201 “1.     The investigation shall be discontinued by a decision of a three-judge panel of the County Court (Article 20 § 2) whenever it decides on an issue: ... (3)     if ... there are other circumstances excluding the possibility of criminal prosecution. ...” Article 437 “1.     The judge [conducting criminal proceedings] shall reject the indictment ... if he or she finds that there exists one of the reasons for the discontinuance of the proceedings under Article 201 § 1 (1)-(3) of this Code ...”     Minor offences 35.     The Minor Offences Act ( Prekršajni zakon , Official Gazette no.   107/2007, with further amendments), as applicable at the relevant time, defined minor offences as acts which breached public order, social discipline or other social values and were not considered criminal offences under the relevant domestic law (section 1). The same Act regulated the procedure to be followed when trying cases concerning minor offences. In this respect, for matters not regulated by that Act, it envisaged that the Code of Criminal Procedure would accordingly apply (section 82(3)). In particular, it provided that in minor-offence proceedings the competent prosecutor was the relevant administrative body and in some instances the victim could act as the prosecutor (section 109). In any event, the victim had the right to participate in the proceedings (section 116). Under section   214(1)(4), there was a possibility of reopening the minor-offence proceedings in favour of the convicted person if he or she had been convicted of the same offence more than once. 36.     The relevant part of the Minor Offences against Public Order and Peace Act ( Zakon o prekršajima protiv javnog reda i mira , Official Gazette no. 5/1990, with further amendments) provides that whoever in a public place fights, argues, yells or otherwise breaches public order and peace is liable to a fine or to a term of imprisonment not exceeding sixty days (section 13).     Prevention of discrimination 37.     The relevant provisions of the Prevention of Discrimination Act ( Zakon o suzbijanju diskriminacije , Official Gazette no. 85/2008) and the relevant practice under that Act are set out in Guberina v. Croatia , no.   23682/13, §§ 27 and 29-31, 22 March 2016.      RELEVANT DOMESTIC PRACTICE AND OTHER MATERIALS     Relevant practice and materials concerning homophobic violence 38.     In September 2008 the government adopted the “National Programme for Combating Discrimination in the period between 2008 and 2013” ( Nacionalni plan za borbu protiv diskriminacije 2008.-2013. ), in which it observed certain difficulties and inadequate capacities of law-enforcement personnel in recognising indications of discrimination. It thus coordinated a training programme for police officers on the matter and stressed the need for more effective identification and prosecution of crime related to discrimination. 39.     In March/April 2011 the government adopted the “Hate Crime Protocol” ( Protokol o postupanju u slučaju zločina iz mržnje ) which developed measures of recording and processing hate-crime cases. In particular, the prosecution service was required to monitor offences which could be considered as hate crime and the police were required to record the outcome at all stages of the procedure from initial investigation to final judgment. 40.     In December 2011 two non-governmental organisations in Croatia, Lesbian group Kontra and Iskorak – Centre for the rights of sexual and gender minorities, issued a publication on the conduct of the domestic authorities in cases of hate crimes against LGBT (lesbian, gay, bisexual, and/or transgender) persons in Croatia. The document identified violent offences as the most common form of crime and criticised the existing tendency of the police to prosecute the perpetrator of the crime, but also sometimes the victim, for the minor offence of a breach of the peace and public order instead of lodging a criminal complaint against the perpetrator. 41 .     Further, in December 2011 four non-governmental organisations (Domino-Queer Zagreb, Zagreb Pride, Centre for Peace Studies and Lesbian organisation LORI), with the support of the European Union and the Ministry of Economy, Labour and Entrepreneurship, published a “Manual for the suppression of discrimination and violence against LGBT persons”. They observed that the 1997 Criminal Code as amended provided for the obligation of the criminal justice authorities to elucidate the circumstances of a homophobic hate crime and that in practice the domestic criminal courts generally considered a hate-crime element as an aggravating circumstance. However, the provision of Article 89 § 36 of the 1997 Criminal Code essentially mandated declaratory rather than practical protection. It called for further clarifications as to the role of the hate-crime element in the definition of the offences and the determination of the penalty, which was provided for in the 2013 Criminal Code (see paragraph   33 above). 42.     The Manual further observed the impact of the Court’s judgment in the case of Maresti v. Croatia (no. 55759/07, 25 June 2009) on the practice of the domestic authorities concerning the prosecution of hate crime. It noted that the Court’s judgment in question excluded the possibility of successive minor-offence and criminal proceedings concerning the same facts. However, the practice of the police was to institute minor-offence proceedings and to lodge a criminal complaint which, on the basis of the Maresti case-law, ordinarily resulted in the discontinuance of the subsequent criminal proceedings owing to a previous minor-offence conviction. This was particularly problematic in the case of hate crime since the minor-offence proceedings could not address the hate-crime element and the perpetrators usually got away with very lenient sentences without ever being punished for hate crime. Although in 2010 the criminal justice authorities undertook measures to coordinate their actions to avoid such occurrences (see paragraphs 45-46 below), there was still a high level of divergence in practice and inadequate prosecutions of hate crime. 43.     In November 2013 the non-governmental organisation Zagreb Pride, in cooperation with the non-governmental organisations Lesbian organisation LORI and Domino and Queer Sport Split, and with the support of the European Union and the government, published a report on the status of human rights of LGBT persons in Croatia in the period between 2010 and 2013. The report observed that in a number of cases of hate crime against LGBT persons the police had instituted minor-offence proceedings instead of lodging criminal complaints. This had resulted in very lenient sentences for the perpetrators, which did not provide a sense of protection to LGBT persons or provide the required deterrent effect. A number of educational activities for police officers had been organised and the report noted a certain amount of progress in the police approach to the matter, in particular in the Zagreb area, whereas in some other parts of Croatia the inadequate response of the police still remained a recurrent problem. Furthermore, the report stressed that the legislative framework had been strengthened, in particular by the 2013 Criminal Code and the adoption of the Hate Crime Protocol.     The Constitutional Court’s case-law 44.     The Constitutional Court’s case-law concerning victims’ procedural complaints under Articles 2 and 3 of the Convention are outlined in Kušić and Others v. Croatia (dec.), no. 71667/17, §§ 41-56, 10 December 2019.     Other relevant domestic practice 45 .     In April 2010 the State Attorney’s Office of the Republic of Croatia and the Police Directorate of the Ministry of the Interior issued instructions to the prosecuting authorities (the police and the State Attorneys) on the processing of cases involving minor and criminal offences in the light of the ne bis in idem principle. 46 .     As regards criminal offences concerning bodily injuries and minor offences against public order and peace , the police were required, at the same time, to institute minor-offence proceedings and to lodge a criminal complaint with the relevant State Attorney’s Office by clearly differentiating the factual scope of the respective charges. Where it was not possible to differentiate that scope, the police were required to consult the State Attorney’s Office and only to lodge a criminal complaint.    INTERNATIONAL LAW AND PRACTICE     United Nations 47.     The relevant parts of the UN General Assembly Joint Statement on human rights, sexual orientation and gender identity (UN Doc. A/63/635, 18   December 2008) provide as follows: “4     - We are deeply concerned by violations of human rights and fundamental freedoms based on sexual orientation or gender identity; 5     - We are also disturbed that violence, harassment, discrimination, exclusion, stigmatisation and prejudice are directed against persons in all countries in the world because of sexual orientation or gender identity, and that these practices undermine the integrity and dignity of those subjected to these abuses; 6     - We condemn the human rights violations based on sexual orientation or gender identity wherever they occur, in particular the use of the death penalty on this ground, extrajudicial, summary or arbitrary executions, the practice of torture and other cruel, inhuman and degrading treatment or punishment, arbitrary arrest or detention and deprivation of economic, social and cultural rights, including the right to health; ...” 48.     In its Report on discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity (UN Doc. A/HRC/19/41, 17 November 2011), the United Nations High Commissioner for Human Rights stressed the following: “84.     The High Commissioner recommends that Member States: (a)     Investigate promptly all reported killings and other serious incidents of violence perpetrated against individuals because of their actual or perceived sexual orientation or gender identity, whether carried out in public or in private by State or non-State actors, and hold perpetrators accountable, and establish systems for the recording and reporting of such incidents; (b)     Take measures to prevent torture and other forms of cruel, inhuman or degrading treatment on grounds of sexual orientation and gender identity, to investigate thoroughly all reported incidents of torture and ill-treatment, and to prosecute and hold accountable those responsible; ...” 49.     In the follow-up report (UN Doc. A/HRC/29/23, 4 May 2015), the Commissioner for Human Rights stressed as follows: “78.     The High Commissioner recommends that States address violence by: (a)     Enacting hate crime laws that establish homophobia and transphobia as aggravating factors for purposes of sentencing; (b)     Conducting prompt, thorough investigations of incidents of hate-motivated violence against and torture of LGBT persons, holding perpetrators to account, and providing redress to victims; ... (e)     Training law enforcement personnel and judges in gender-sensitive approaches to addressing violations related to sexual orientation and gender identity; ...” 50.     On 29 September 2015, twelve United Nations bodies (ILO, OHCHR, UNAIDS Secretariat, UNDP, Unesco, UNFPA, UNHCR, Unicef, UNODC, UN Women, WFP and WHO) issued a Joint Statement calling for an end to violence and discrimination against LGBTI people. In the relevant part concerning the protection of individuals from violence, the Statement reads as follows: “States should protect LGBTI persons from violence, torture and ill-treatment, including by: •     Investigating, prosecuting and providing remedy for acts of violence, torture and ill-treatment against LGBTI adults, ... •     Strengthening efforts to prevent, monitor and report such violence; •     Incorporating homophobia and transphobia as aggravating factors in laws against hate crime and hate speech; ...”     Council of Europe 51.     The relevant parts of the Appendix to Recommendation CM/Rec(2010)5 of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity of 31 March 2010 provide as follows: “1.     Member states should ensure effective, prompt and impartial investigations into alleged cases of crimes and other incidents, where the sexual orientation or gender identity of the victim is reasonably suspected to have constituted a motive for the perpetrator; they should further ensure that particular attention is paid to the investigation of such crimes and incidents when allegedly committed by law enforcement officials or by other persons acting in an official capacity, and that those responsible for such acts are effectively brought to justice and, where appropriate, punished in order to avoid impunity. 2.     Member states should ensure that when determining sanctions, a bias motive related to sexual orientation or gender identity may be taken into account as an aggravating circumstance. ...” 52.     The relevant part of the Explanatory Memorandum of the Steering Committee for Human Rights (CDDH) on Recommendation CM/Rec(2010)5 provides: “1     - 2. Hate crimes are crimes committed on grounds of the victim’s actual or assumed membership of a certain group, most commonly defined by race, religion, sexual orientation, gender identity, nationality, ethnicity, disability etc. For the purpose of this recommendation, the term ‘ hate-motivated incident ’ is used to encompass any incident or act – whether defined by national legislation as criminal or not – against people or property that involves a target selected because of its real or perceived connection or membership of a group. The term is broad enough to cover a range of manifestations of intolerance from low-level incidents motivated by bias to criminal acts. ‘Hate crimes’ and other ‘hate motivated incidents’ are very upsetting for the victims and the community to which they belong, and it is all the more striking that, from the victim’s point of view, what matters most is having suffered such a crime because of an immutable fundamental aspect of their identity. But they also threaten the very basis of democratic societies and the rule of law, in that they constitute an attack on the fundamental principle of equality in dignity and rights of all human beings, as inscribed in Article 1 of the Universal Declaration of Human Rights of the United Nations. Lesbian, gay, bisexual and transgender persons are the target of many such crimes or incidents. According to the OSCE/ODIHR report ‘ Hate Crimes in the OSCE Region: Incidents and Responses ’, homophobic crimes or incidents are often characterised by a high degree of cruelty and brutality, often involving severe beatings, torture, mutilation, castration or even sexual assault, and may result in death. They may also take the form of damage to property, insults or verbal attacks, threats or intimidation. It is understood that the most appropriate measures and procedures to deal with a hate crime or a hate motivated incident will depend on the applicable national regulations and on the circumstances of the case, i.e. whether it concerns a violation of national criminal, civil or administrative law or other regulations (disciplinary procedures etc.). Terms such as ‘investigation’ and ‘sanctions’ should therefore be read, in this respect, in a broad sense, having regard to the circumstances of the case. Legislative measures to combat these crimes are vital. By condemning discriminatory motives, they send out a signal to offenders that a just and humane society will not tolerate such behaviour. By recognising the harm done to the victims, they give these people and their community the assurance of being protected by the criminal justice system. In addition, the existence of such laws renders hate crimes or other hate-motivated incidents more visible and makes it easier to gather statistical data, which in turn is of importance for the designing of measures to prevent and counteract them. In legislation, hate crimes will generally be punished by a more severe penalty, as the offence is committed with a discriminatory motive. A failure to take into account such biased motives for a crime may also amount to indirect discrimination under the ECHR. Member states should ensure that when determining sanctions a bias motive related to sexual orientation or gender identity may be taken into account as an aggravating circumstance. They should furthermore ensure that such motives are recorded when a court decides to hand down a more severe sentence. At least 14   Council of Europe member states have already included sexual orientation as an aggravating circumstance in the committing of an offence in their legislation.” 53.     The relevant parts of Parliamentary Assembly Resolution 1728 (2010) on discrimination on the basis of sexual orientation and gender identity of 29 April 2010 provide: “3.     ... [L]esbian, gay, bisexual and transgender (LGBT) people, as well as human rights defenders working for the rights of LGBT people, face deeply rooted prejudices, hostility and widespread discrimination all over Europe. The lack of knowledge and understanding about sexual orientation and gender identity is a challenge to be addressed in most Council of Europe member states since it results in an extensive range of human rights violations, affecting the lives of millions of people. Major concerns include physical and verbal violence (hate crimes and hate speech), ... 16.     Consequently, the Assembly calls on member states to address these issues and in particular to: ... 16.2.     provide legal remedies to victims and put an end to impunity for those who violate the fundamental rights of LGBT people, in particular their right to life and security;