CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 juillet 2025

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text-align:justify } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .s58B8AE49 { clear:both; mso-column-break-before:always } FIRST SECTION CASE OF BEDNAREK AND OTHERS v. POLAND (Application no. 58207/14)   JUDGMENT Art 3 (+ Art 14) • Positive obligations • Discrimination on the basis of sexual orientation • Insufficient State response to battery with homophobic overtones committed against the applicants • Treatment to which applicants were subjected reached the threshold of severity to fall under Art   3 • Domestic legal framework did not include sexual orientation among grounds for the commission of hate crime or discrimination offences • Prima facie indications that two of the applicants suffered violence motivated or influenced by prejudice • Despite the authorities investigating and convicting the perpetrators with some consideration to the homophobic context, no charges or prosecution brought for a hate-motivated attack • Attackers’ demonstration of hostility towards applicants due to their perceived sexuality not taken into account in determining punishment • State’s failure to discharge its duty to ensure violent attacks motivated by hostility towards victims’ actual or presumed sexual orientation did not remain without an appropriate response   Prepared by the Registry. Does not bind the Court.   STRASBOURG 10 July 2025   FINAL   10/10/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Bednarek and Others v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ivana Jelić, President ,   Alena Poláčková,   Krzysztof Wojtyczek,   Georgios A. Serghides,   Erik Wennerström,   Raffaele Sabato,   Frédéric Krenc, judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   58207/14) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Stanisław Bednarek and Dawid Durejko, Polish nationals, and by Vyacheslav Melnyk, a Ukrainian national (“the applicants”), on 17 August 2014; the decision to give notice of the application to the Polish Government (“the Government”); the decision by the Government of Ukraine not to exercise their right to intervene in the proceedings in accordance with Article 36   §   1 of the Convention and Rule 44   § 1   of the Rules of Court; the observations submitted by the respondent Government and the observations in reply submitted by the applicants; the comments submitted by Helsinki Foundation for Human Rights, the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), and the Campaign Against Homophobia jointly with the Love Does Not Exclude Association, which were granted leave to intervene by the President of the Section; Having deliberated in private on 3 December 2024 and 3 June 2025, Delivers the following judgment, which was adopted on the latter date: INTRODUCTION 1.     The application concerns the criminal proceedings relating to battery with homophobic overtones committed against the applicants by third parties. It raises issues under Article   3 of the Convention in conjunction with Article   14 of the Convention. THE FACTS 2.     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 a Ukrainian national who was born in 1992 and lives in Warsaw. They were represented before the Court by Mr P. Knut, a lawyer practising in Warsaw. 3.     The Polish Government (“the Government”) were represented by their Agent, Mr J. Sobczak, subsequently replaced by Ms A. Kozińska-Makowska, of the Ministry of Foreign Affairs. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     On 1 January 2013 at about 3 a.m., the applicants were assaulted and beaten by two brothers, Pa.M. and Pi.M., and a certain A.M. while walking in one of Warsaw’s main streets with a female friend, K.K. The first and the third applicants, who were a couple at the material time, had been holding hands. 6 .     After the incident the first applicant complained to the police of pain on his face and a bloody nose. The second applicant complained that he had been punched during the assault but that he had not sustained any injuries. According to his submission to the police he did not consider himself a victim in the criminal case. He stated that he had feared for his life in the light of threats uttered by the assailants. It is not known whether any injuries were sustained by the third applicant. 7 .     On 1 January 2013 at 3.10 a.m., the M. brothers and A.M. were stopped by two police officers. Pa.M. and A.M. were tested and found to be inebriated. Pi.M. refused to take an alcohol test. Pi.M., Pa.M. and A.M. did not report any injuries. 8 .     Two incident reports ( notatka urzędowa ) were prepared by the police. It was noted in these documents that the first and the second applicants had submitted that the impugned attack had been 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. 9 .     Later that day Pa.M. was heard by the police as a suspect. 10.     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 ). 11 .     On 16 May 2013 the domestic court heard the accused persons. All three applicants were present at that hearing, accompanied by their lawyer. The applicants and K.K. testified at the hearing held on 14 August 2013 in the presence of the lawyer representing them. 12 .     On 14 August 2013 the Warsaw-Centre Regional Court convicted the accused persons of battery and Pa.M. was additionally convicted of uttering threats. All three were sentenced to imprisonment for a term of one year and each of them was ordered to pay 100 Polish zlotys ((PLN), approximately 25   euros (EUR)) to each applicant. All three prison sentences were suspended for three years. 13 .     The first-instance court based its judgment on the testimony of the 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 view of the fact that each party to the fight had clearly recounted the relevant events in a subjective manner and blamed their adversaries for the assault, the fact that the witnesses and the accused parties had altered their accounts during the proceedings, and the sequence of the events. The domestic court also heard the two policemen who had intervened, and it obtained all the incident reports (concerning the arrest, the search and the tests for alcohol levels in the blood). 14 .     The first-instance court attached the greatest weight to K.K.’s testimony, as she had been the only person not to actively participate in the brawl, having observed it from the periphery, and to the applicants’ earlier version of the events, as it had been given shortly after the incident had taken place. 15.     The first-instance court’s reasoning was nineteen pages long and it contained detailed references to various pieces of contradictory or corroborating evidence. The analysis of the assailants’ motives was a half ‑ page long. 16 .     The domestic court established the sequence of events and assessed the accused persons’ intent as follows. 17 .     Pi.M., who was intoxicated, maliciously accosted the first and the third applicants as they were walking, breaking their grasp and calling them “faggots”, thus expressing his disapproval of their sexual orientation. He then kept walking. In the domestic court’s opinion, even though Pi.M.’s behaviour had been reprehensible, it did not show that the accused had already at that point decided to attack the applicants because of their sexual orientation. The fact that he had refrained from immediately attacking the applicants showed instead that his intention at that point had only been to annoy them out of spite. 18.     The first applicant then turned around and said something to Pi.M. That comment aroused aggression in Pi.M., who had been drinking that night. Pi.M. then attacked the first applicant. The first applicant fought back. At that point, neither of the remaining applicants nor Pa.M. or A.M. took part in the struggle. 19.     The second and third applicants tried to separate the two men who were fighting. Pa.M. caught up with the group. The M. brothers were the aggressive party. They punched all three applicants in the head and the face. 20.     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 stood to the side, insulting the applicants. 21.     The brawl ended and the accused persons started to walk away, one of them carrying the first applicant’s bag. 22.     The second phase of the incident started when the first applicant, followed by the second and the third applicants, ran after Pa.M. and grabbed the bag from him. Pa.M. spontaneously reacted by turning around and hitting the first applicant. Pa.M. continued to hit him, and Pi.M. also subsequently joined in. At some point the first applicant fell or was knocked to the ground and the M. brothers continued to hit and kick him. The second applicant tried to pull the first applicant out of the brawl, whereupon he himself received several blows. 23 .     When the accused persons were stopped by the police, Pa.M. 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 ) could mean either “hitting someone” or “stealing”. The court concluded that the expressions used by Pa.M. constituted threats of physical harm. 24 .     The first-instance court classified the incident as battery, with the accused persons having clearly been the aggressors. The threats made by Pa.M. were considered a separate offence. The domestic court analysed the elements of the latter offence, taking into account the offensive wording employed by Pa.M. (see paragraph 23 above). 25 .     As to the motivation of the accused persons, 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 beating itself, however, had been Pi.M.’s irritation with the first applicant’s remark, which he had made as Pi.M. had continued walking. The domestic court considered that the Pi.M.’s anger had clearly been unjustified, but it could nevertheless have been the cause of Pi.M.’s attack, bearing in mind his state of intoxication. In the domestic court’s view, in the circumstances of the case and especially given his state of intoxication and resulting aggressive behaviour, Pi.M.’s assault might have taken place whatever the sexual orientation of the victim. The domestic court thus concluded that the direct motive behind the beating of the applicants had not been homophobia, but rather an urge to retaliate against the applicants for the comment which one of them had made. 26 .     The domestic court further observed that Pa.M.’s main motive in joining the fight had been to help and assist his brother, even though their behaviour had a clear homophobic dimension. A.M. had also been motivated by a desire to provide help to Pa.M. and Pi.M. Regarding the offence of uttering threats, the domestic court noted the use of the word “faggot” by Pa.M. (see paragraph 23 above). It did not, however, further elaborate on this element. 27 .     In deciding on the sentence, the domestic court observed that the level of the accused persons’ culpability was high, since they were sane adults and had acted with intent to assault and threaten the applicants. The offences had been committed with a direct intent and had caused serious social harm because the life and limb of the applicants had been at risk. Overall, the applicants had received blows to the head, face and body, they had been insulted and had felt further threatened. Less serious harm had been inflicted on the third applicant by A.M. The court also took into consideration the financial situation of the accused parties. 28 .     The applicants appealed, arguing, inter alia , that the first-instance court had erred in rejecting their argument that incident had been motivated, from the beginning until the end, by homophobia and in ordering a disproportionately lenient sentence. The applicants did not challenge the other factual findings made by the district court. 29 .     On 14 February 2014 the Warsaw Regional Court ( Sąd Okręgowy ) upheld the first-instance judgment. The appellate court held specifically that the available evidence, 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 different sexual orientation. The court observed that the fines imposed might appear low, but that they reflected the financial situation of the accused, who did not have any permanent jobs. The judgment was final, as no cassation appeal to the Supreme Court was available. RELEVANT LEGAL FRAMEWORK DOMESTIC LAW Existing regulations 30.     Article 32 of the Polish Constitution, as in force at the relevant time and currently, 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.” 31 .     Hate crimes and discrimination are governed by Article   119 § 1 of the Polish Criminal Code ( Kodeks Karny ), which was in force at the relevant time and still is in force. That provision reads as follows: “Anyone who uses violence or makes unlawful threats towards a group of people or towards a particular person because of their national, ethnic, racial, political or religious affiliation or because of their lack of religious beliefs shall be subject to imprisonment for a term of three months to five years.” 32 .     Article 158 of the same Code regulates the generic offence of battery. The version in force at the relevant time read as follows: “1.     Anyone who is involved in a brawl or a beating which exposes a person to the immediate danger of death or of [mild, medium or serious bodily injury] shall be punished by imprisonment for a term of up to three years. 2.     If the consequence of a brawl or a beating causes serious damage to human health, the offender shall be punished by imprisonment for a term of six months to eight years. 3.     If a brawl or a beating results in the death of a person, the offender shall be subject to imprisonment for a term of one to ten years.” 33.     In the current version of Article   158, in force since 1   October 2023, the above-mentioned terms of imprisonment have been changed as follows: in paragraph   1, the term is from three months up to five years; in paragraph   2, the term is from one year up to ten years; and in paragraph   3, the term is from two to fifteen years. 34.     Article 190 of the Criminal Code regulates the generic offence of making threats. The version in force at the relevant time read as follows: “1.     Anyone who threatens another person with committing a criminal offence to the detriment of that person or of those close to him or her, where the threat raises a credible fear that it will materialise, shall be punished by a fine, restriction of liberty or imprisonment for a term of up to two years. 2.     The prosecution [of that offence] shall be carried out on a request by the victim.” 35.     In the current version, in force since 1 October 2023, the above ‑ mentioned provision sets out a single punishment of imprisonment for up to three years. 36 .     Article 53 of the Criminal Code pertains to the system of punishment and punitive measures. The version in force at the relevant time read as follows: “1.     A court shall impose a [discretionary] punishment within the limits set out by law, provided that the suffering [which results from the punishment] does not exceed the degree of the criminal responsibility, taking into account the degree of the social harm caused by the act and the objectives of prevention and education, which are to be achieved in respect of the sentenced person, and of the need to raise legal awareness in society. 2.     The court imposing a punishment shall take into account, specifically[:] the motivation and the conduct of the offender; [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 scope 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. ...” 37.     On 7 July 2022 amendments effective 1 October 2023 were made to Article   53 of the Criminal Code. Paragraph 1 of the provision currently reads as follows: “1. A court shall impose punishment at its discretion, within the limits set out by law, taking into account the degree of social harmfulness of the act, aggravating and mitigating circumstances, the objectives of the punishment in terms of social impact, as well as the preventive objectives that it is supposed to achieve in relation to the convicted person. The severity of the punishment shall not exceed the degree of guilt.” 38 .     In addition, paragraphs 2a and 2b were added, setting out aggravating and mitigating circumstances. Paragraph 2a, regarding the former, reads as follows: “2a. Aggravating circumstances are, in particular: 1) a previous criminal record for an intentional crime or a for a similar crime lacking intent; 2) taking advantage of the victim’s helplessness, disability, illness or old age; 3) a course of action leading to the humiliation of or [causing] anguish to the victim; 4) the commission of a premeditated offence; 5) the commission of the offence as a result of a motivation deserving particular condemnation; 6) the commission of an offence motivated by hatred because of the victim’s national, ethnic, racial, political or religious affiliation, or because of the victim’s lack of religious beliefs; 7) acting with particular cruelty; 8) the commission of an offence while under the influence of alcohol or a drug, if this condition was a factor leading to the commission of the offence or materially increasing its effects; 9) the commission of an offence in cooperation with or with the participation of a minor.” 39 .     On 26 February 2014 the Polish Prosecutor General issued official Guidelines on Proceedings involving Hate Crimes (PG VIIG021/54/13). It is explicitly stated in that document that the guidelines concern crimes committed to the detriment of persons because of their national, ethnic, racial, political or religious affiliation or because of their lack of religious beliefs. The guidelines are silent on the subject of homophobic or transphobic hate crimes. Attempts to reform the criminal law 40 .     The first proposal to amend the criminal law to prohibit hate crimes and hate speech motivated by homophobia and transphobia was submitted to the Polish Parliament in 2011. Three similar draft amendments were proposed in 2012. New draft amendments were presented in 2014, 2016, 2018 and 2019. All those draft amendments were either rejected, not submitted to a vote, or otherwise not advanced before the expiry of the Parliamentary term. The official position on the 2019 draft amendment taken by the Government, the Prosecutor General and the National Council of the Judiciary was essentially that it was unnecessary to amend the Criminal Code to include sexual orientation and gender identity among the possible motives of hate crimes and hate speech, given that, in their view, the existing criminal and civil law offered sufficient protection against offences motivated by prejudice against LGBTI persons. 41.     The latest draft amendment to prohibit hate crimes and hate speech motivated by homophobia and transphobia was submitted by the Government and was tabled in 2024 (document no. 876). 42.     According to that proposal, Article   53 §   2a (6) and Article   119 §   1 (see paragraphs 31 and 36-38 above) (as well as Article 256 §   1 and Article   257 – on hate speech) of the Criminal Code should be amended to include, inter alia , hatred motivated by sexual orientation among the circumstances considered aggravating for acts of violence, uttering threats, incitement to hatred and hate speech. In addition, where relevant, the word “because” should be replaced by the term “in connection with”. The formulation proposed aims at extending the applicability of the provisions in question to persons who do not have, but who are merely perceived as having the status designated in these provisions. 43.     According to the written reasoning of the 2024 draft amendment, the existing criminal law is insufficient to ensure effective and viable protection for those affected by discrimination on the grounds, inter alia , of sexual orientation and does not meet the needs of the contemporary society. The aims of the reform included alignment with international standards, improvement of the effectiveness of the fight against offences committed on discriminatory grounds and the strengthening of the protection of victims by way of ensuring an effective system of criminal-law sanctions. 44 .     In December 2024, the first reading of the draft amendment was completed and the proposal was not rejected by the lower chamber of Parliament. In February 2025, the Extraordinary Committee for Changes in Codifications ( Komisja Nadzwyczajnej do spraw zmian w kodyfikacjach ) recommended that the draft amendment be adopted. That process is on-going. STATEMENTS BY THE POLISH COMMISSIONER FOR HUMAN RIGHTS 45 .     In a submission of 22 October 2015 addressed to the Minister of Justice (VIII.816.2.2014.AM), the Polish Commissioner for Human Rights observed that the existing legal framework was not effective or comprehensive enough to ensure equal treatment of, inter alia , non ‑ heterosexual or transsexual persons. 46.     The Commissioner submitted that, according to the applicable international standards, the victims of hate crimes had to be identified as victims of discrimination, while the hate motive of a crime had to be revealed and the perpetrator had to be liable to a more severe punishment than that for ordinary offences. In that context, the Commissioner stated that the Court, in its judgments in the case of Kozak v. Poland (no.   13102/02, §   92, 2   March 2010) and in the case of P.V. v. Spain , (no.   35159/09, §   30, 30   November 2010), had indicated that sexual orientation and sexual identity were among the grounds of discrimination prohibited under Article   14 of the Convention. Moreover, in the hate speech case of Vejdeland and Others v.   Sweden (no.   1813/07, §   55, 9 February 2012), the Court had held that discrimination based on sexual orientation was as serious as discrimination based on “race, origin or colour”. The Commissioner also referred to the Court’s judgments in the case of Abdu v. Bulgaria (no.   26827/08, §   44, 11   March 2014) and in the case of Nachova and Others v. Bulgaria ([GC], nos.   43577/98 and   43579/98, §   145, ECHR   2005-VII), making the following submissions. Hate motivated violence was a particular affront to human dignity and, in view of its perilous consequences, required from the authorities special vigilance and a vigorous reaction. It was for that reason that the authorities had to use all available means to combat such violence, thereby reinforcing the democratic vision of a society in which diversity was not perceived as a threat but as a source of enrichment. Treating hate motivated violence on an equal footing with cases lacking any such overtones would be tantamount to turning a blind eye to the specific nature of acts which were particularly destructive of fundamental human rights. 47 .     Lastly, the Commissioner observed that various international entities, including the European Union (EU) Agency for Fundamental Rights, the European Parliament, the United Nations (UN) Committee Against Torture, the UN Human Rights Committee and the European Commission against Racism and Intolerance (“the ECRI”) (see paragraphs   52-56 below), had recommended that Polish criminal law should be amended so as to explicitly punish homophobic and transphobic crimes. Some of those entities had also recommended that such homophobic and transphobic motives should be treated as an aggravating circumstance for the purpose of punishment. 48.     In a submission of 11 February 2016 addressed to the Minister of Justice (XI.816.10.2015.AM), the Polish Commissioner for Human Rights reiterated his observations from his previous submission in 2015 (see paragraphs   45-47 above). In addition, he stressed that violence against, inter ‑ alia , non-heterosexual persons and transgender persons was of a special nature and required increased efforts to detect, prosecute and punish it. A   strong response to that type of violence would be a guarantee of the implementation of international standards for the protection of the rights and freedoms of the victims of hate crimes. 49 .     In a submission of 14 May 2020 addressed to the Minister of Justice (XI.503.3.2020.MA), the Polish Commissioner for Human Rights reiterated that the existing national legal framework did not effectively protect the rights of LGBTI persons and was not aligned with the applicable international standards. The Commissioner further observed that hate crimes, including hate speech, constituted the most dangerous form of unequal treatment and led to the exclusion of the targeted social groups. Hate crimes not only negatively affected the direct victims, but also democratic society and the principle of the rule of law, with which an attack on the fundamental principles of the dignity and equality of all human beings was incompatible. Given those considerations, it was necessary to amend the Criminal Code to include the penalisation of hate crimes, including hate speech, based on actual or perceived sexual orientation and sexual identity. INTERNATIONAL MATERIAL 50.     EU law prohibits any discrimination based on any ground, explicitly including sexual orientation (see Articles 10 and 19 of the Treaty on the Functioning of the EU, in force in Poland since 1   May 2004, and Article   21 §   1 of the EU Charter of Fundamental Rights, in force in Poland since 1   December 2009). The proposal for an EU Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (COM(2008)426 final 2008/0140 (CNS)) is considered “blocked”, with further progress “unlikely” (see the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Commission work programme 2025, published on 11   February 2025, Annex IV: Withdrawals, point 26, page 25). 51 .     On 31 March 2010 the Committee of Ministers of the Council of Europe adopted Recommendation CM/Rec(2010)5 to member States on measures to combat discrimination on grounds of sexual orientation or gender identity. In so far as relevant, its Appendix reads as follows: “I. Right to life, security and protection from violence A.     ’Hate crimes’ and other hate-motivated incidents 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 .     On 26 October 2010 the UN Human Rights Committee adopted the following concluding observations, having considered the sixth periodic report of Poland (Consideration of reports submitted by States parties under article 40 of the Covenant, CCPR/C/POL/CO/6): “... 8.     The Committee notes with concern a significant rise in manifestations of hate speech and intolerance directed at lesbian, gay, bisexual and transgender people and, since 2005, in the number of cases based on sexual orientation filed with the Ombudsman. The Committee also regrets the absence of the provision in the [Criminal] Code of hate speech and hate crimes based on sexual orientation or gender identity as punishable offences (art. 2). The State party should ensure that all allegations of attacks and threats against individuals targeted because of their sexual orientation or gender identity are thoroughly investigated. It should also: legally prohibit discrimination on the grounds of sexual orientation or gender identity; amend the [Criminal] Code to define hate speech and hate crimes based on sexual orientation or gender identity among the categories of punishable offences; and intensify awareness-raising activities aimed at the police force and wider public. ...” 53 .     In 2012, the EU Agency for Fundamental Rights issued a report: “Making hate crime visible in the European Union: acknowledging victims’ rights”. In so far as relevant, the agency formulated the following opinions based on the analysis contained in the report (see page 11 of the report): “... Acknowledging victims of hate crime ... Legislation should be adopted at the EU and national levels that would oblige EU Member States to collect and publish data pertaining to hate crime. This would serve to acknowledge victims of hate crime, in line with the duty of EU Member States flowing from the case law of the European Court of Human Rights to unmask bias motivations underlying criminal offences. These data would not allow for the identification of individuals but would be presented as statistics. ... As the right to non-discrimination under Article 14 of the ECHR ties in with the right to an effective remedy under Article 13 of the ECHR, victims of hate crime should have remedies available to them to enable them to assert their rights under Article   14 of the ECHR. This would apply in any case where victims believe that the public prosecutor or the criminal court did not sufficiently address the violation of this right. To encourage hate crime reporting, confidence should be instilled among victims and witnesses of hate crime in the criminal justice system and law enforcement. Ensuring effective investigation and prosecution EU Member States’ law enforcement agencies and criminal justice systems should be attentive to any indication of bias motivation when investigating and prosecuting crimes. Details on hate crime incidents should be recorded to allow for the identification of specific bias motivations, so that these can be followed up when investigating and prosecuting hate crimes. Convicting hate crime offenders Legislators should look into models where enhanced penalties for hate crimes are introduced to stress the added severity of these offences. This would serve to go beyond including any given bias motivation as an aggravating circumstance in the criminal code. The latter approach is limited in its impact because it risks leading to the bias motivation not being considered in its own right in court proceedings or in police reports. Courts rendering judgments should address bias motivations publicly, making it clear that these lead to harsher sentences. ...” 54 .     On 19 November 2013 the UN Committee against Torture adopted the following concluding observations, having considered the combined fifth and sixth periodic reports of Poland (Concluding observations on the combined fifth and sixth periodic reports of Poland, CAT/C/POL/CO/5-6): “... Vulnerable groups 25.     The Committee notes the adoption of the Equal Treatment Act in 2010 and the provisions of the [Criminal] Code prohibiting hate crimes (arts. 119, 256 and 257), but considers that neither the Act nor the [Criminal] Code provide adequate and specific protection against discrimination based on sexual orientation ... It is also concerned at the significant rise in manifestations of hate speech and intolerance directed at lesbian, gay, bisexual and transgender people ... The Committee recommends that the State party incorporate offences in its [Criminal] Code to ensure that hate crimes and acts of discrimination and violence that target persons on the basis of their sexual orientation ... are punished accordingly. It also urges the State party to take all necessary measures to combat discrimination and violence against ... lesbian, gay, bisexual and transgender people ...” 55 .     The European Parliament, in a resolution of 4   February 2014 on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity (2013/2183(INI)), stated that member States should register and investigate hate crimes against LGBTI people and adopt criminal legislation prohibiting incitement to hatred on grounds of sexual orientation and gender identity (see point 4.J(v) of the resolution). 56 .     In its report on Poland, published on 9 June 2015, the ECRI recommended that that sexual orientation and gender identity be added to the prohibited grounds in Articles 118, 119 and 255 of the Criminal Code (paragraph 47 of the report). In its latest report on Poland, published on 18   September 2023, the ECRI reiterated its previous recommendation and made the following observations, in so far as relevant (footnotes omitted): “51.     [The] ECRI recommends, as a matter of priority, that the Polish authorities initiate legislative amendments to add sexual orientation, gender identity and sex characteristics as explicitly prohibited grounds to the relevant provisions of the Criminal Code. ... 63.     Neither paragraph 1 of Article 118 of the Criminal code prohibiting homicide, nor paragraph 1 of Article 119 prohibiting violence, nor paragraph 2 of Article   255 prohibiting incitement to crime, have been amended to include sexual orientation or gender identity among the grounds for hate crime, despite [the] ECRI having recommended the addition of these grounds in its fifth report. As concerns criminal legislation, reference is made in this regard to the recommendation made in paragraph   51. 64.     According to data submitted by the Polish authorities to [the] OSCE/ODIHR, there were 826 cases of hate crime recorded by police services in 2020, out of which 374 were prosecuted and 266 resulted in a sentence by court. The corresponding numbers were 972, 432 and 597 in 2019 and 1,117, 397 and 315 in 2018. According to the authorities, hate crimes constitute less than 1% of all crimes recorded in the country. 65.     The authorities informed [the] ECRI that, in each regional public prosecutor’s office, at least one district prosecutor is responsible for the conduct of proceedings in hate crime cases. As a result, there are in theory about one hundred prosecutors in Poland who are specialised in conducting proceedings in relation to hate crimes. The authorities indicated that such training for judges and prosecutors continue. A   2014 Prosecutor General’s written order provides guidance as to how to investigate hate crimes. However, several civil society sources claim that the 2014 order was not properly implemented. 66.     According to the independent prosecutor association LSO, the management of the Prosecution Service has systematically deprioritised the investigation and prosecution of hate crimes since March 2016 and there are no longer compulsory training courses about hate crimes for prosecutors who are assigned such cases. Neither are there any optional courses on hate crimes that prosecutors or judges could attend. Similar to the prosecution of hate speech, hate crime cases, which are indeed often based on the same articles of the Criminal Code, are frequently discontinued despite the apparent presence of clear evidence of criminal offences. 67.     [The] ECRI recommends that the authorities ensure compulsory training about the effective investigation and prosecution of hate crime for police officers and prosecutors and make courses on the handling of hate crimes available to judges.” 57 .     A similar recommendation was made by the UN Human Rights Committee in their Concluding observations on the seventh periodic report of Poland published on 23 November 2016 (CCPR/C/POL/CO/7). The relevant parts of that report read as follows: “15.     The Committee is concerned about the reported increase in the number of incidents of violence, hate speech and discrimination based on race, nationality, ethnicity, religion and sexual orientation and the insufficient response by the authorities to such incidents. The Committee is also concerned that the [Criminal] Code does not refer to disability, age, sexual orientation or gender identity as grounds for hate crimes (arts. 2, 3, 18, 20, 26 and 27). 16.     The State party should continue strengthening its efforts to prevent and eradicate all acts of ... homophobia by, inter alia : (a) Amending the [Criminal] Code so that crimes motivated by discrimination on any grounds under the Covenant are investigated and prosecuted as aggravated forms of criminal conduct; (b) Taking measures to prevent and swiftly and effectively respond to any incidents of hate speech, discrimination, violence or alleged hate crime, including through the Internet, by banning the operation of racist associations and facilitating civil lawsuits by victims pursuant to article 24 (1) of the Civil Code; (c) Thoroughly investigating alleged hate crimes, prosecuting perpetrators and, if convicted, punishing them, and providing victims with adequate remedies; ...” 58 .     The UN Human Rights Council’s Report of the Working Group on the Universal Periodic Review regarding Poland, published on 18   July 2017 (A/HRC/36/14) contains the following recommendations, in so far as relevant: “120.     The following recommendations will be examined by Poland which will provide responses in due time, but no later than the thirty-sixth session of the Human Rights Council: ... 120.46 Improve further its non-discrimination legislation by criminalizing hate crimes on the grounds of ... sexual orientation and gender identity, while taking the measures necessary to combat discrimination based on race, sex, nationality, ethnicity, religion or any other grounds (Brazil); 120.47 Amend the [Criminal] Code to provide that crimes motivated by discrimination on any grounds, including ... gender identity and expression and sexual orientation, are included in the Code and therefore can be investigated and prosecuted as hate crimes (Norway); ...” THE LAW ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION taken in conjunction with Article 14 of the Convention 59.     The applicants complained, relying on Articles 3, 6, 13 and 14 of the Convention, that when conducting the proceedings in respect of the assault and battery committed against them, the authorities had not taken into account the homophobic motivation of the perpetrators. The applicants also complained of a lack of adequate legislative and other measures to prosecute and combat hate crimes motivated by victims’ sexual orientation. 60.     The Court, being the master of the characterisation to be given in law to the facts of the case, considers that the applicants’ complaints fall to be examined under Article 3 of the Convention taken in conjunction with Article   14 of the Convention (see Radomilja and Others v.   Croatia [GC], nos.   37685/10 and 22768/12, § 126, 20 March 2018). Moreover, in view of the applicants’ allegations that the violence perpetrated against them had homophobic overtones which had not been adequately considered by the domestic court, the Court finds that the most appropriate way to proceed is to subject the applicants’ complaints to a simultaneous examination under Article 3 taken in conjunction with Article   14 of the Convention (see, mutatis mutandis , Idento