CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 novembre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 9 December 2024   FIFTH SECTION Application no. 27144/17 Sanda ŞLEPAC against the Republic of Moldova lodged on 28 March 2017 communicated on 19 November 2024 SUBJECT MATTER OF THE CASE The application concerns the alleged failure of the Moldovan authorities to provide effective protection to the applicant from hate-motivated violence. The applicant is a male to female transgender person. On 27 July 2015 she reported to the police a physical and verbal assault by a certain V.E. on that day. On 31 July 2015 the police found V.E. responsible for minor acts of violence under Article 78 of the Code of Administrative Offences and ordered him to pay a fine of 500 Moldovan Lei (MDL) (equivalent at the time to 24   euros (EUR)), which was the minimum amount under that provision. On 11 November 2015 the applicant initiated civil proceedings against V.E. claiming non-pecuniary damage, arguing that she had been assaulted because of her gender identity. On 10 March 2016 the Anenii Noi District Court awarded the applicant EUR 100 for non-pecuniary damage and EUR   225 for costs and expenses. The applicant appealed against the judgment and argued that the amount of the award for non-pecuniary damage was too low, emphasising the absence of a legal framework punishing hate-motivated violence and the ensuing lack of an investigation into the hate motive behind the attack in her respect. The applicant also complained that, despite the hate element being overt in the administrative offence proceedings –V.E. had admitted attacking the applicant because she was transgender – the court had failed to properly address it. Instead, the first-instance court had concluded that it was the applicant’s behaviour – she had splashed V.E. with wine – that prompted V.E. to attack her, and not her gender identity. Finally, the applicant pointed to the lack of a legal framework that would effectively protect her against hate-motivated offences. On 6 September 2016 the Chișinău Court of Appeal upheld the first-instance judgment but increased the award for non-pecuniary damage to EUR 250 without acknowledging the existence of a hate element. The decision was later upheld by the Supreme Court of Justice on 1 February 2017. The applicant complains, under Article 14 read in conjunction with Article   8 of the Convention, that the State’s failure to secure a legal framework providing protection against transphobic hate-motivated attacks and abuse perpetrated by private individuals was in breach of the State’s positive obligations under these provisions. The applicant further complains, under Article 13 of the Convention, that there had been no effective domestic remedies available to her to seek redress for the violations of which she complained. She maintained, in particular, that in the absence of the legal framework against hate-offences, the civil action was an illusory remedy. QUESTIONS TO THE PARTIES 1.     Has the applicant exhausted all effective domestic remedies as required by Article 35 § 1 of the Convention given the fact that she did not appeal against the decision of 31 July 2015?   2.     Have the State authorities complied with their positive obligations under Article 8 of the Convention, taken alone and/or in conjunction with Articles 13 and 14 of the Convention, concerning the discriminatory (transphobic) attack against the applicant (see Beizaras and Levickas , no.   41288/15, §§ 106-30, 149-56, 14 January 2020; Association ACCEPT and   Others v. Romania , no. 19237/16, §§ 96-103 and 114-26, 1 June 2021; Sabalić v. Croatia , no. 50231/13, §§ 90-101, 14 January 2021; and Nepomnyashchiy and Others v. Russia , nos. 39954/09 and 3465/17, §§   76 ‑ 79 and 84-85, 30 May 2023)?   3.     Was it possible for the applicant, at the time of the events, in the absence of a specific legal provision against hate-motivated offences, to obtain, through seeking the pursuit of administrative or criminal proceedings, the recognition of the existence of a discriminatory (transphobic) motive and an adequate punishment for the offender?