CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 juin 2022

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font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .sADD4F530 { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sD8AE9261 { width:36.9pt; display:inline-block } .sDC0BAB79 { width:166.46pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   FOURTH SECTION CASE OF STOYANOVA v. BULGARIA (Application no. 56070/18)     JUDGMENT Art 14 (+ Art 2) • Discrimination • Life • Homophobic motives underlying a murder not constituting a statutory aggravating factor and having no measurable effect on sentencing Art 46 • General measures • Systemic problem • Respondent state to ensure that violent - particularly fatal – homophobic attacks to be treated as aggravated in criminal-law terms in full compliance with Art 7 requirement that criminal law not to be construed extensively to the detriment of the accused   STRASBOURG 14 June 2022   FINAL   14/09/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Stoyanova v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Tim Eicke, President ,   Yonko Grozev,   Faris Vehabović,   Iulia Antoanella Motoc,   Armen Harutyunyan,   Pere Pastor Vilanova,   Jolien Schukking, judges , and Ilse Freiwirth, Deputy Section Registrar , Having regard to: the application (no. 56070/18) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Hristina Ivanova Stoyanova (“the applicant”), on 22   November 2018; the decision to give the Bulgarian Government (“the Government”) notice of the complaints concerning the alleged breach of Article 14 taken together with Article 2 of the Convention and to declare the remainder of the application inadmissible; the observations submitted by the Government and the observations in reply submitted by the applicant; the written comments submitted by the non-governmental organisations Bulgarian Helsinki Committee and Deystvie, both of which were granted leave to intervene by the Vice-President of the Section; Having deliberated in private on 17 May 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1 .     The case concerns the alleged failure by the Bulgarian authorities to give a proper legal response to the homophobic motives underlying the murder of the applicant’s son – a failure alleged to be due to, in particular, the absence of statutory provisions making such motives an aggravating factor in relation to the crime of murder. The case raises an issue under Article   14 taken together with Article 2 of the Convention. THE FACTS 2.     The applicant was born in 1951 and lives in Sofia. She was represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. 3.     The Government were represented by their Agent, Ms R. Nikolova of the Ministry of Justice. 4.     The facts of the case may be summarised as follows. Murder of the applicant’s son 5 .     On 30 September 2008 three men beat and choked the applicant’s son to death in a park in Sofia. He was then twenty-six years old. They attacked him because they thought that he looked like a homosexual; they had on several previous occasions assaulted other people for that reason. 6 .     According to the findings of fact made by the domestic courts in the subsequent criminal proceedings (see paragraphs 9-31 below), the three men were members of a group of six secondary-school students who gathered often in a park in Sofia. In the course of their gatherings the group would single out homosexuals known to be frequenting the park and assault them. On several occasions they attacked men whom they perceived as homosexuals, calling their actions “kicking” or a “clean-up”. 7 .     Between 8 p.m. and 9 p.m. on 30 September 2008 five members of the group met in the park and decided to find a man who looked like a homosexual and to assault him. They split into two groups of three and two people, so as to be better able to ambush their potential victim. Shortly after 9 p.m. they came across the applicant’s son. One of them hit him in the face, knocking him down to the ground. The applicant’s son then got up and tried to run away, but another member of the group ran after him, grabbed his neck and again brought him to the ground, face down. The two attackers, joined by a third, then fell upon the applicant’s son, kicking and hitting him. One of them grabbed his neck and began strangling him, breaking his hyoid bone in the process. The applicant’s son felt pain and screamed. The three attackers then pushed his torso and head to the ground, face down, using their hands and knees. As a result, his nose and mouth were blocked, which prevented him from breathing. This continued for about five minutes. During the first two minutes the applicant’s son tried to resist, but then lost consciousness and subsequently died of mechanical asphyxiation. The first attacker then searched the deceased’s pockets and took his wallet and mobile telephone. A few minutes later he threw away the wallet, but kept the telephone. The three attackers then found the two remaining members of the group and told them what had happened. 8 .     At about 8 a.m. the following morning a passer-by saw the dead body of the applicant’s son and called the police and an ambulance. CRIMINAL PROCEEDINGS IN RELATION TO THAT Murder Arrest 9 .     The police were able to identify the first attacker through the victim’s mobile telephone, which he had used for some time after taking it (see paragraph 7 in fine above). On 28 May 2010 they interviewed him as a witness, and on 3 June 2010 arrested the three attackers. At first instance Course of the trial 10 .     In 2013-15 two of the attackers were tried for aggravated murder. The third retained the status of a witness. The applicant joined the proceedings as a private prosecutor (acting in parallel to the public prosecutor) and as a civil claimant. 11 .     In the course of the trial, the public prosecutor argued, inter alia , that the circumstances in which the attackers had killed the applicant’s son indicated that their act had been motivated by their hostility towards people with a different sexual orientation, and by their disregard for the law, morality and human life. In the public prosecutor’s view, that amounted to hooligan motives ( хулигански подбуди ) within the meaning of Article 116 § 1 (11) of the Criminal Code (see paragraph 34 (b) below). Judgment of the Sofia City Court 12 .     The Sofia City Court convicted the two attackers of murder committed with direct intent and in a way particularly painful for the victim, contrary to Articles 115 and 116 § 1 (6) of the Criminal Code (see paragraphs 33 and   34   (a) below), but acquitted them of the charge that they had acted from hooligan motives, contrary to Article 116 § 1 (11) (see paragraph 11 above and paragraph 34 (b) below). It sentenced them to, respectively, thirteen years’ and four years and ten months’ imprisonment. Those sentences were below the minimum lengths prescribed by Article 116 § 1 in respect of aggravated murder (fifteen years), and by the special sentencing rules applicable to minors (five years – see paragraph 43 below) (which applied to the second attacker because he had been seventeen years and seven months old when committing the offence; the first attacker could not benefit from those rules as he had been eighteen years and seven months old at the time of the offence). The court fixed those sentences pursuant to a general sentencing rule enabling it to go below the statutory minimum if faced with exceptional or numerous mitigating factors (see paragraph 42 below). Lastly, the court ordered the attackers to pay the applicant 250,000 Bulgarian levs (BGN – equivalent to 127,823 euros (EUR)), plus interest, in respect of the pain and suffering that she had suffered as a result of her son’s death (see прис. № 199 от 22.06.2015 г. по н. о. х. д. № 3766/2013 г., СГС ). 13 .     The court found that in the run-up to the murder the group of which the two attackers had been members had been assaulting people perceived by them as homosexuals. However, it went on to find that the homophobic motives for the assault had not then driven the attackers to escalate their attack to the level of murder. It also held that the evidence did not permit a firm conclusion that their sudden decision to escalate the assault to the level of murder had been based on hooligan motives – that is to say to demonstrate disrespect towards society or public order. 14 .     When fixing the length of the two sentences, the court treated as individual aggravating factors (see paragraph 38 below) in relation to both attackers the young age of the victim and the homophobic motives for the assault and the fact that it fell under a pattern of such assaults. It treated as mitigating factors the attackers’ clean criminal records, their “involvement in socially-beneficial activities”, and their young age. The court went on to find that there existed, with respect to both attackers, exceptional mitigating factors warranting sentences below the statutory minimum (see paragraph 42 below). For the first attacker, those factors were his very young age when committing the offence (just above eighteen-and-a-half years), and the excessive length of the proceedings. For the second attacker, the sole mitigating factor was the excessive length of the proceedings (since his being less than eighteen years old had already been taken into consideration, given that he was sentenced under the special rules applying to minors – see paragraph 12 above). On appeal Appeals by the parties 15 .     All parties appealed against the Sofia City Court’s judgment. The public prosecutor challenged only the sentences imposed on the attackers. The applicant, acting in her capacity as a private prosecutor, appealed against the decision to acquit them of the charge that they had committed the murder for hooligan motives (contrary to Article 116 § 1 (11) of the Criminal Code), and against their sentences. She argued, in particular, that both the attack on her son and his murder had been driven by the attackers’ homophobia. Judgment of the Sofia Court of Appeal 16 .     In its judgment ( реш. № 330 от 12.07.2017 г. по н. д. № 84/2016 г., САС ), the Sofia Court of Appeal upheld the conviction of the two attackers under Articles 115 and 116 § 1 (6) of the Criminal Code (see paragraph 12 above and paragraphs 33 and 34 (a) below). Its only point of disagreement with the lower court in that respect concerned the form of the mens rea : unlike the lower court, the court of appeal held that the two attackers had not acted with direct intent (to cause death) but rather with oblique intent (that is to say through recklessness): “The evidence shows that the two accused and the [remaining three members of the group] were walking [in the park] in order to find a person to ‘clean up’ or ‘kick’ – as they themselves described their actions with respect to people they perceived as homosexuals. Although the [first-instance] court found it categorically established that they [had gone to the park] with the intent to beat up ( набият ) a homosexual, it was wrong to hold that during the short time when they were carrying out the attack, both of them suddenly resolved to kill the victim by pushing his torso and head [against the ground]. [This court] finds that the subjective attitude of the accused towards the result [of their actions did not indicate such an intent]. Their direct aim was clearly established   – to beat up a random person whom they perceived (on the basis of criteria known only to themselves) as a homosexual. There is no evidence that on previous occasions ... the accused had sought to cause death. The manner in which the incident unfolded categorically excludes the possibility that the two suddenly resolved to cause death. At first the accused were acting sequentially, with [the first attacker] taking the leading role. He clearly manifested his wish to prove his manliness, and attacked the victim without warning. He punched [the victim’s] face ... His mindset towards those actions was no different from [that which gave rise to] his initial intention. The [second attacker] joined [the first], and brought the victim to the ground. He had the same mindset [as that of the first attacker] towards his actions. Both accused wished to cause the victim some sort of physical harm. Their aim was to hit him, and the injuries on the victim’s body demonstrate that. After they brought the victim to the ground, the dynamics of the situation changed. The victim’s physical characteristics rendered it necessary for all attackers to push [down on] him to immobilise him. At that point the victim’s hyoid bone was broken; it remains unclear which one of the attackers did that, but the way in which that happened does not suggest that the two accused suddenly resolved to kill him. Nothing in their subjective attitude changed, except that after they managed to immobilise the victim and push him [to the ground], the two began to speculate on whether the victim might suffocate. They did not directly intend for that to happen (although it became more and more likely as they increased the pressure), but they accepted that it could happen. Each of them was aware that by blocking the [victim’s] airways they were [preventing him from] breathing. Their gratuitous hatred   for the victim, caused by their lack of any intelligence and their improper sense of self-importance and superiority vis-à-vis people whom they saw as different, drove them to press [the victim] against the ground. They both realised that as a result of the protracted lack of air he could die. They were, however, fully indifferent to that result, which became likely, and kept up the pressure, which ultimately [resulted as it did]. They did not directly seek to cause [the victim’s] death, but they acquiesced to it, realising that it was possible. ...” 17 .     The court went on to uphold the acquittal of the two attackers on the charge that they had acted from hooligan motives, contrary to Article 116 §   1   (11) of the Criminal Code (see paragraphs 11 and 12 above and paragraph   34 (b) below): “[This court] is of the view that the accused were not prompted by hooligan motives, [and realised] that their act showed disregard not only for the person and life of the victim, but also for public order and society. The accused’s act was carried out in a public space, but it cannot be said that it was indecent and targeted the general interests of society. Their act was not committed in front of many people, and was directed exclusively against the victim’s person. This was a brutal assault which led to serious and irreversible consequences. It did not, however, express overt disrespect towards society, but simply disregard for someone else’s physical integrity. The accused’s act manifested their hatred for homosexuals, which means that they were prompted by homophobic motives rather than hooligan ones.” 18 .     The court nonetheless increased the sentences to, respectively, fifteen and six years’ imprisonment, on the basis of its own view of the interplay of aggravating and mitigating factors, and its finding – which differed from that of the lower court (see paragraph 14 above) – that there were no exceptional mitigating factors warranting sentences below the statutory minimum (see paragraph 42 below). 19 .     With respect to the first attacker, the court highlighted the gratuitous cruelty that he had demonstrated, the fact that he had taken the initiative to attack, and the fact that he had taken and subsequently used the victim’s mobile telephone. It also noted both the fact that the attack had resulted from a preconceived plan to assault anyone perceived by the group as a homosexual, and the complete lack of remorse on the part of the first attacker and his subsequent efforts to conceal his participation in the events. For the court, neither the young age of the culprit nor the length of the proceedings constituted exceptional mitigating factors warranting a sentence below the statutory minimum (fifteen years). It was, however, proper to fix his sentence at that minimum. 20 .     With respect to the second attacker, the court noted, in particular, his active participation in the attack – fully commensurate with that of the first attacker – and the evidence that he had then been content with his actions. The length of the proceedings was not an exceptional mitigating factor in relation to him either. There were hence no grounds to go below the statutory minimum applicable to him as a minor (five years – see paragraph 43 below) either. The appropriate sentence, in view of, in particular, his degree of dangerousness, was slightly above that minimum. 21 .     Lastly, the court quashed the lower court’s decision regarding the applicant’s claim for damages, noting that the applicant had sought BGN   250,000 from each of the attackers rather than a total of BGN 250,000 from both of them. It referred that aspect of the case back to the first-instance court for re-examination. Proceedings before the Supreme Court of Cassation Appeals on points of law 22 .     The two attackers and the applicant appealed on points of law. The applicant challenged the Sofia Court of Appeal’s rulings on the form of the mens rea and on the absence of hooligan motives, and the length of the sentences that it had imposed (see paragraphs 16-20 above). Judgment of the Supreme Court of Cassation 23 .     On 21 June 2018 the Supreme Court of Cassation upheld the two rulings of the Sofia Court of Appeal challenged by the applicant, as well as the remainder of the appellate judgment, but reduced the sentences of the two attackers to, respectively, ten and four-and-a-half years’ imprisonment (see реш. № 39 от 21.06.2018 г. по н. д. № 1258/2017 г., ВКС, III н. о. ). 24 .     The court noted, in particular, that the lower courts’ finding that the attackers had been members of a group assaulting people perceived by them as homosexuals (see paragraph 13 above) had a solid basis in the relevant evidence. It went on to hold that the court of appeal had been correct to find that the attackers had acted with oblique rather than direct intent (see paragraph 16 above): “[The] established aim of the [attackers] was to assault people with homosexual orientation without the intention to cause their death. There is no evidence that the victim was attacked with a view to being killed, which is why the court of appeal correctly characterised the form of the mens rea as [one of] oblique intent, and its decision to correct [the first-instance court] on that point was fully based on the findings regarding the mental attitude of the [attackers] towards [their] actions. This must be reflected in ... an assessment of whether their sentences are just.” 25 .     The court held as follows with regard to the alleged hooligan motives within the meaning of Article 116 § 1 (11) of the Criminal Code (see paragraph 11 above and paragraph 34 (b) below): “Since the [attackers] fell upon the victim because they thought that he had a different sexual orientation, their motives and intentions could be defined as homophobic, as found by the [first-instance] court, but their actions ... were not preceded, accompanied or followed by acts of hooliganism, so as to engage ... Article 116 § 1 (11) of [the Criminal Code]. It is well-established that ‘for a murder to be characterised as having been committed for ‘hooligan motives’, it is necessary for the offender to have carried out indecent actions that grossly violated public order and showed overt disrespect towards society, and for those actions to have motivated and driven him [or her] to commit the murder itself’ .... [It is also settled] that the mere fact that a murder has been committed for no apparent reason is not sufficient to find that it has been committed for hooligan motives ...” 26 .     As for the sentences, the court found the Sofia Court of Appeal’s assessment (see paragraphs 18-20 above) unduly harsh, and agreed with the first-instance court that there were grounds to fix them below the statutory minimum (see paragraph 14 above and paragraph 42 below). 27 .     With respect to the first attacker, the court highlighted his young age at the time of the offence, his clean criminal record, and the excessive length of the proceedings. It went on to note that he had a good employment record and was in a poor state of health ( влошено здравословно състояние ). For the court, those amounted to numerous mitigating factors warranting a sentence below the statutory minimum. The excessive length of the proceedings even constituted grounds in itself to go below that minimum, and thus compensate the first attacker for the excessiveness of that length. An overall assessment of his conduct, and in particular the facts that he had taken the victim’s wallet and mobile telephone and had later tried to conceal his participation in the offence by suborning witnesses, led to the conclusion that it was appropriate to sentence him to ten years’ imprisonment. 28 .     With respect to the second attacker, the court found that the excessive length of the proceedings, his clean criminal record, and his good character amounted to numerous mitigating factors warranting a sentence below the statutory five-year minimum applicable to him as a minor (see paragraph 43 below). The main factor in that respect remained the length of the proceedings. However, since the second attacker had been almost an adult at the time of the offence, it was appropriate to set his sentence at just six months below that minimum. 29 .     The court went on to say that the applicant’s request for an increase in the two sentences was unfounded. That request had been based on her arguments that her son’s murder had been committed with direct intent and for hooligan motives, both of which allegations had been rejected (see paragraphs 22-25 above). Her further arguments that the seriousness of the offence and the degree of culpability of the attackers called for harsher punishments could not alter the assessment of the factors taken into account in fixing the length of their sentences below the statutory minimum. Re-examination of the applicant’s claim for damages by the Sofia City Court and the Sofia Court of Appeal 30 .     Having re-examined the applicant’s claim for damages, as instructed by the Sofia Court of Appeal (see paragraph 21 above), and having obtained a clarification from the applicant that she sought a total of BGN 500,000, plus interest, the Sofia City Court on 8 March 2019 ordered the two attackers to pay her jointly BGN 250,000 (equivalent to EUR 127,823), plus interest, in respect of the pain and suffering caused by her son’s murder. The court noted that the prohibition against reformatio in pejus , which applied also to civil claims, prevented it from awarding more than BGN 250,000 at that stage of the proceedings, since the applicant had not appealed against its initial decision to award that sum (see paragraphs 12 and 15 above) (see прис. oт 08.03.2019 г. по н. о. х. д. № 2925/2018 г., СГС ). 31 .     Following appeals by the applicant and the two attackers,   on   7   October 2019 the Sofia Court of Appeal upheld the bulk of the first-instance court’s judgment but reduced the award to BGN 200,000 (equivalent to EUR 102,258), plus interest, on the basis that this was more consistent with the awards normally made in such cases (see реш. № 373 от 07.10.2019 г. по в. н. о. х. д. № 874/2019 г., САС ). That judgment was apparently not appealed against and became final. 32 .     In 2020 the applicant brought enforcement proceedings against the two attackers to secure the payment of that sum. By the end of November   2021 (the last time that the Court received any information from her on that point) she had been unable to secure any payments from them. RELEVANT LEGAL FRAMEWORK 1968 CRIMINAL CODE Murder and aggravated murder 33 .     Under Article 115 of the 1968 Criminal Code, murder is punished with ten to twenty years’ imprisonment. 34 .     Article 116 of the Code lays down a multitude of factors that can lead a murder to be classed as “aggravated” and thus liable to harsher punishment (fifteen to thirty years’ imprisonment or a life sentence – with or without the possibility of parole). Those factors include (a) committing the murder in a way particularly painful for the victim (Article 116 § 1 (6)), and (b) committing the murder for hooligan, racist or xenophobic motives (Article   116 § 1 (11)). Article 116 § 1 does not distinguish between those aggravating factors in terms of any possible sentence: the presence of any of them may constitute grounds to impose the harsher punishments envisaged by that provision. 35 .     Article 116 § 1 (11), as originally enacted, referred only to “hooligan   motives”. Racist and xenophobic motives were added in 2011, when the Criminal Code was amended on the basis of, inter alia , a government-sponsored bill (no. 002-01-97 ) aimed at transposing the European Council’s Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law ( OJ L 328, 6.12.2008, pp. 55-58 ), and in particular Article 4 of that Decision. [1] 36 .     In mid-2019 the Supreme Court of Cassation held that the presence of one of the aggravating factors set out in Article 116 § 1 (11) (xenophobic motives) did not rule out the presence of another factor (namely hooligan motives) (see реш. № 145 от 08.07.2019 г. по н. д. № 534/2019 г., ВКС, II   н. о. ). General sentencing rules 37 .     The general sentencing rules are set out in Articles 54 to 59 of the 1968 Criminal Code. 38 .     Under Article 54 § 1, the court must fix the sentence within the statutory range prescribed for the respective offence by taking into account the general rules of the Code, as well as (a) the seriousness of the offence and the dangerousness of the offender, and (b) the motives for the offence and the remaining mitigating and aggravating factors. 39 .     The Supreme Court of Cassation has explained that Article 54 § 1 requires the sentencing court to assess those factors as a whole, with due regard to the aims of sentencing and the relative weight and the nature of each of the aggravating or mitigating factors in the specific case, rather than carry out a formalistic or purely mechanical calculation (see реш. № 262 от 11.07.2011 г. по н. д. № 1259/2011 г., ВКС, I н. о. ; реш. № 168 от 02.03.2018 г. по н. д. № 791/2017 г., ВКС, III н. о. ; and реш. № 8 от 14.03.2018 г. на ВКС по н. д. № 1047/2017 г., НК, I н. о. ). 40 .     Article 56 clarifies that circumstances laid down as elements of the offence do not amount to mitigating or aggravating factors for the purposes of that analysis. 41.     The former Supreme Court and the Supreme Court of Cassation have explained that the purpose of Article 56 is to prevent certain factors being taken into account twice: both as statutory aggravating factors (that is, elements of the aggravated offence) and as individual aggravating factors for the purposes of Article 54 § 1 (see реш. № 474 от 18.04.1972 г. по н.   д.   №   233/1972 г., ВС, III н. о. , and реш. № 87 от 10.05.2004 г. по н.   д.   №   701/2003 г., ВКС, I н. о. ). However, the Supreme Court of Cassation has also noted that when the number of statutory aggravating factors is not in itself an integral feature of the aggravated offence, it is not contrary to Article   56 to take that number (two or more statutory aggravating factors) into account as an individual aggravating factor within the meaning of Article   54 § 1 (see реш. № 329 от 14.07.2009 г. по н. д. № 257/2009 г., ВКС, I н. о. ). That court has also clarified that if an offence presents two or more statutory aggravating factors, and even one of those factors is sufficient for it to be characterised as an aggravated offence, then the accumulation of such factors can be taken into account as an individual aggravating factor within the meaning of Article 54 § 1 (see реш. № 134 от 24.03.2010 г. на ВКС по н. д. № 25/2010 г., I н. о. , and реш. № 23 от 12.03.2019 г. по н.   д.   №1247/2018 г., ВКС, I н. о. ). On the basis of that rationale, that court has held that a finding that an aggravated offence does not present an additional statutory aggravating factor (in the case in question, hooligan motives for a murder) can constitute grounds to fix a lower sentence than that which would otherwise have befitted an offence presenting that additional factor (see реш. № 256 от 27.03.2019 г. по н. д. № 985/2018 г., ВКС, I   н.   о. ). It has also held, more generally, that the presence of several statutory aggravating factors becomes an individual aggravating factor within the meaning of Article 54 § 1 (see, for instance, реш. № 62 от 20.02.2009 г. по н. д. № 696/2008 г., ВКС, III н. о. ; реш. № 183 от 19.05.2015 г. по н.   д.   №   289/2015 г., ВКС, I н. о. ; and реш. № 193 от 30.06.2015 г. по н.   д.   № 587/2015 г., ВКС, III н. о. ). 42 .     If faced with exceptional or numerous mitigating factors, when even a sentence fixed at the statutory minimum would be unduly harsh, the court may, inter alia , fix the sentence below that minimum (Article 55 § 1 (1)). Special rules on the sentencing of minors 43 .     Articles 60 to 65 of 1968 Criminal Code lay down special rules on the prosecution, conviction and sentencing of minors. By Article 63 § 2 (1), if a minor who has turned sixteen would be liable to be sentenced to a term of imprisonment of more than fifteen years or life imprisonment if he or she were an adult, he or she must instead be sentenced to a term of imprisonment ranging from five to twelve years. By Article 63 § 3, the specific sentence within that range must be fixed in line with the general sentencing rules (see paragraphs 37-42 above). draft 2014 criminal code 44 .     In 2009-13 the Bulgarian Ministry of Justice drew up, with the help of many experts, a draft new Criminal Code. In January 2014 the Government presented the bill (no. 402-01-8 ) to Parliament, but Parliament did not then proceed to examine it. 45 .     Under sub-paragraph 15 of Article 110 § 1 of that draft Code (which broadly corresponds to Article 116 § 1 of the 1968 Criminal Code – see paragraph 34 above), a murder committed on account of a protected characteristic of the victim is treated as “aggravated” and attracts a higher punishment. The draft Code also contained similar provisions in respect of other offences: causing bodily harm (Article 125 § 1 (15)) and torture (Article   589 § 2 (4)). 46 .     Paragraph 1 (22) of the draft Code’s additional provisions defined “protected characteristic” as “race, skin colour, national origin, nationality, ethnicity, origin, religion, faith, health status, age, sex or sexual orientation”. 47 .     The notes accompanying the draft Code stated (on page 10) that it covered all situations in which an offender might be motivated by some special characteristic of the victim, which is why the people formulating the draft had opted for the technique of referring to a “protected characteristic” as an element in the definition of several basic and aggravated offences, and of specifically defining what that term meant. In the case of some offences, a “protected characteristic” was an integral feature of the basic offence; for other offences, such as murder, causing bodily harm, and inflicting torture, it was a statutory aggravating factor, since offences in which the perpetrator was motivated by such a characteristic indicated a higher degree of dangerousness. RELEVANT COUNCIL OF EUROPE MATERIAL 48 .     Point 2 of the Appendix to Recommendation CM/Rec(2010)5 of the Committee of Ministers on measures to combat discrimination on grounds of sexual orientation or gender identity ( link ) stated: “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.” 49 .     The explanatory memorandum to that Recommendation ( CM(2010)4-add3final ) stated, in point I.A.1-2 (footnotes omitted): “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 [Convention]. 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 [fourteen] Council of Europe member states have already included sexual orientation as an aggravating circumstance in the committing of an offence in their legislation.” RELEVANT COMPARATIVE LAW 50.     On 9 December 2021 the European Commission published a Communication to the European Parliament and Council entitled “A more inclusive and protective Europe: extending the list of EU crimes to hate speech and hate crime” ( COM(2021) 777 final ), proposing an extension of the list of areas of European Union crimes, to include hate speech and hate crime. According to this Communication, nineteen member States of the European Union (Austria, Belgium, Croatia, Cyprus, Denmark, Finland, France, Greece, Hungary, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden) criminalise hate crime on grounds of sexual orientation ( ibid. , at p. 13, fn. 100). In the United Kingdom, on 22 October 2020 Parliament enacted the Sentencing Act 2020 which provides, in relation to England and Wales, that a court considering the seriousness of an offence must treat the fact that the offence is aggravated by hostility inter alia related to sexual orientation as an aggravating factor, and must state in open court that the offence is so aggravated if at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on the sexual orientation (or presumed sexual orientation) of the victim or if the offence was motivated (wholly or partly) hostility towards persons who are of a particular sexual orientation ( section 66(1)(d), (2)(a), (4)(a)(iv) and (4)(b)(iv) ) and section 414 of the Act). The Act entered into force on 1   December 2020. THE LAW ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 2 OF THE CONVENTION 51 .     The applicant complained that the deadly attack on her son, even though motivated by homophobia, had been treated as violence that had not had such overtones because (a) the Bulgarian Criminal Code did not treat homophobic motives as a statutory aggravating factor in respect of murder, and because (b) the courts dealing with the criminal case against the attackers had not characterised those homophobic motives as hooligan ones, or at least had not taken them into account as an individual aggravating factor when fixing the attackers’ sentences. She relied on Article 14 taken together with Article   2 of the Convention. 52.     Those provisions read, so far as relevant: Article 2 (right to life) “1.     Everyone’s right to life shall be protected by law. ...” Article 14 (prohibition of discrimination) “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Submissions of those appearing before the Court The parties (a)    The applicant 53 .     The applicant submitted that the breach of the Convention had lain in the failure of the legislature to view homophobic motives as a statutory aggravating factor, in the refusal of the Bulgarian courts to deem those motives to constitute hooligan ones, and in the failure of those courts to treat those homophobic motives as an aggravating factor when fixing the attackers’ sentences. 54 .     The applicant averred that she had as a result suffered both direct and indirect discrimination. The indirect discrimination had consisted of the fact that victims of homophobic murders were treated in the same way as victims of murders not characterised by such motivation. The direct discrimination had consisted of the authorities’ failure to treat victims of homophobic murders in the same way as victims of racist or xenophobic murders. She drew attention to various reports and other material according to which there existed in Bulgaria intolerance towards vulnerable groups, and to the alleged failure of the Bulgarian authorities to take effective steps to combat hate crime and domestic and homophobic violence. 55 .     The applicant went on to say that since homophobic motives were not deemed to constitute an aggravating statutory factor and since (as was plain from their reasoning in this case) the Bulgarian courts distinguished between homophobic and hooligan motives, her only possible line of argument in that respect had been to urge those courts to characterise the motives for her son’s murder as hooligan ones. 56.     The applicant further criticised the Supreme Court of Cassation for not mentioning homophobic motives when analysing aggravating factors in relation to each of the two attackers. She also took issue with the reasons given by that court to fix their sentences below the statutory minimum and to reject her request for harsher penalties to be imposed; in particular she took issue with the court’s assessment of the length of the proceedings and its implications for the sentences. It was, in her view, unacceptable that homophobic motives for an unprovoked, sadistic murder could have resulted in more lenient punishments than those imposed for a murder prompted by hooligan or pecuniary motives. (b)    The Government 57 .     The Government pointed out that the Bulgarian courts had specifically found that homophobic motives had prompted the attack on the applicant’s son, but had also established that those motives had not caused the escalation of the attack to murder. The courts had explained why those motives could not be seen as hooligan ones, but had treated them as an aggravating factor when fixing the sentences of the two attackers. The authorities had thus sufficiently explored that aspect of the case and had taken due account of those homophobic motives. For her part, the applicant had not specifically highlighted those motives during the domestic proceedings. 58 .     The Government went on to submit that even if homophobic motives had been a statutory aggravating factor or had been accepted as constituting hooligan motives during the proceedings relating to the murder of the applicant’s son, that would not have necessarily resulted in harsher punishments for the attackers, since their sentences had been fixed on the basis of a number of factors. The Government also pointed out that the ruling that the homophobic motives for the murder had not been hooligan ones had been intensely fact-specific rather than based on some general distinction drawn by the Bulgarian courts in respect of that particular legal point. The Government further stated that the applicant’s assertions about the authorities’ response to hate crime in general were baseless and misleading. The third parties (a)    Bulgarian Helsinki Committee 59 .     The Bulgarian Helsinki Committee submitted that according to the Court’s case-law, violence based on discriminatory intent could not be treated in the same way as violence that had no such overtones. It went on to describe the manner in which the Bulgarian Criminal Code dealt with hate crime, noting that it did not deem hostility towards a victim’s sexual orientation (or gender identity or expression) to constitute a statutory aggravating factor in relation to any offence. The intervener also outlined the way in which the Bulgarian courts went about assessing individual mitigating and aggravating factors, and pointed out that under the approach followed by those courts, motivation in the form of hostility towards a victim’s sexual orientation (or gender identity or expression) could be treated as an aggravating factor, but that that was not necessarily so in each case. The intervener further pointed out that under the rules of criminal procedure, all courts at all levels of jurisdiction had to analyse all mitigating and aggravating factors; thus, in the view of the intervener, failure by a court to mention a specific factor would imply that it had seen that factor as irrelevant. 60 .     The Bulgarian Helsinki Committee also described (a) various attempts in the period 2014-18 to introduce criminal-law provisions making all types of violence based on sexual orientation, gender or gender identity subject to harsher penalties, and (b) efforts by various stakeholders to highlight the need to combat such violence in Bulgaria. (b)    Deystvie 61 .     Deystvie noted that although the Bulgarian Criminal Code elevated some protected characteristics to the level of statutory aggravating factors, it did not do so in the case of sexual orientation or gender identity. It went on to describe several incidents involving homophobic or biphobic violence (in particular, incidents that had occurred during public events) and instances of hate speech against people of a homosexual or bisexual orientation,