CEDH · CASELAW;CLIN;ENG — 12 décembre 2023

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Croatia - 15798/20 Judgment 12.12.2023 [Section II] Article 3 Positive obligations Commutation of a ten-month prison sentence imposed on applicant’s co-worker to community service, after he had been convicted of sexual violence against her: violation Article 8 Positive obligations Commutation of a ten-month prison sentence imposed on applicant’s co-worker to community service, after he had been convicted of sexual violence against her: violation Facts – In June 2015 the applicant filed a criminal complaint against her work colleague M.P., accusing him of sexual violence committed in the workplace. M.P was subsequently found guilty of two counts of committing lewd acts under the Criminal Code and sentenced to ten months’ imprisonment by the first-instance court. On appeal that sentence was upheld but the appellate court replaced imprisonment with community service which was duly served. Law – Articles 3 and 8: The applicant’s treatment fell within the scope of Article 3 and 8 and it was accordingly examined under both provisions of the Convention. At the outset the Court noted and endorsed the growing importance of community service as an integral and useful component of modern penal policy in many Council of Europe Member States. It also noted, by way of a general observation, that in light of the broad international consensus on the need to stand firm on violence against women, domestic courts needed to pay particular attention when deciding to apply community service instead of prison for such crimes. In the present case, the criminal courts had established that the applicant had been the victim of two counts of lewd acts, defined under the domestic law as actions with a sexual connotation which fell short of sexual intercourse without consent. Although it was not for the Court to question the domestic courts’ finding that M.P.’s acts had not qualified as attempted rape, it could not but note that any force applied by M.P against the applicant would clearly also have been relevant for his sentencing. The Court further noted that, in deciding on the perpetrator’s sentence, the domestic courts had not taken into consideration a number factors which had been relevant under the domestic law in the sentencing process, such as the consequences of the offence on the applicant, M.P.’s behaviour following the committal of the criminal offences in question, or his apparent lack of remorse or any effort to compensate for the damage that had been caused to the applicant. What was more, the first-instance court had clearly held that the degree of M.P.’s criminal liability had been particularly high in the circumstances, given the fact that he had committed the sexual offences against the applicant repeatedly and within a short period of time, which had pointed to his particularly strong intent. It was therefore striking that the second-instance court held that commuting his sentence would serve the purpose of punishment, solely in view of the fact that four years had passed since the commission of the offences and the perpetrator had not committed any further crimes. In doing so, the second-instance court had not even mentioned the perpetrator’s high degree of criminal liability or his strong intent in committing the sexual offences at issue and had not put forward any plausible reasons to explain why the mere passage of time – which could in no way have been imputable to the applicant and must have only further traumatised her as a victim – had outweighed the above-mentioned serious aggravating circumstances. In view of the foregoing, it could thus not be said that commuting of M.P.’s prison sentence   had taken place following a careful scrutiny of all the relevant considerations related to the case. As a result, in a case such as the present, which had been considered as borderline by the domestic authorities, despite the repeated nature of the serious sexual violence suffered by the applicant, the appeal court had chosen to replace M.P.’s prison sentence with community service without giving adequate reasons and without considering in any way the interests of the victim, which the domestic courts were obliged to take into account when deciding on the sentence to be imposed. Such an approach might have, in the Court’s view, been indicative of a certain leniency in punishing violence against women, which might in turn discourage victims from reporting such acts, whereas according to the scarce data available in that context, violence against women was worryingly common and remained seriously underreported. Leniency of the penal policy in dealing with domestic violence and violence against women cases had also been noted in the Baseline evaluation report on Croatia published by the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) in September 2023. In the particular circumstances of the case, bearing in mind the specific social danger of violence against women and the need to combat it with efficient and deterrent actions, in its response to the violence suffered by the applicant, the State had not sufficiently discharged its procedural obligation to ensure that the repeated sexual violence she had suffered in her workplace was dealt with appropriately. Conclusion : violation (unanimously). Art 41: EUR 10,000 in respect of non-pecuniary damage. (See also Smiljanić v. Croatia , 35983/14, 25 March 2021, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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