case of balazs v. hungary

SECOND SECTION

CASE OF BALZS v. HUNGARY

(Application no. 15529/12)

JUDGMENT

STRASBOURG

20 October 2015

This judgment will become final in the circumstances set out in Article 44 2 of the

Convention. It may be subject to editorial revision.

BALZS v. HUNGARY JUDGMENT 1

In the case of Balzs v. Hungary,

The European Court of Human Rights (Second Section), sitting as a

Chamber composed of:

Il Karaka, President, Andrs Saj,

Neboja Vuini, Helen Keller,

Egidijus Kris, Robert Spano,

Jon Fridrik Kjlbro, judges,

and Stanley Naismith, Section Registrar,

Having deliberated in private on 1 September and 22 September 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 15529/12) against Hungary

lodged with the Court under Article 34 of the Convention for the Protection

of Human Rights and Fundamental Freedoms (the Convention) by a Hungarian national, Mr Jnos Krisztin Balzs (the applicant), on 5 March 2012.

2. The applicant was represented by Ms E. Muhi, a lawyer practising in

rd. The Hungarian Government (the Government) were represented by Mr Z. Talldi, Agent, Ministry of Justice.

3. The applicant alleged that the authorities had failed in their obligation

to conduct an effective investigation into a racist attack against him, in

breach of Article 14 read in conjunction with Article 3 of the Convention.

4. On 1 September 2014 this complaint was communicated to the

Government and the remainder of the application was declared

inadmissible.

5. The applicant and the Government each filed observations on the

admissibility and merits of the case. In addition, third-party comments were

received from the European Roma Rights Centre, which had been given

leave to intervene in the written procedure (Article 36 2 of the Convention

and Rule 44 3 of the Rules of Court).

2 BALZS v. HUNGARY JUDGMENT

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1991 and lives in Szeged.

7. On 21 January 2011 around 4 a.m. the applicant and his girlfriend

Ms D.L. were about to leave a club in Szeged, when three men in their

twenties, unknown to them, started to insult them. The three men made

degrading comments about the applicants Roma origin and about the physical appearance of his girlfriend.

8. Subsequently a fourth person, Mr E.D., appeared, presenting himself

as a police officer. (In fact, he was a penitentiary officer.) When Mr E.D.

was about to leave, the applicant questioned him about his attitude using

offensive and vulgar language, upon which Mr E.D. turned back and got

into a fight with the applicant, which ended due to the intervention of three

persons, the applicants acquaintances. Following the fight, Mr E.D. called the police. Two officers arrived. The

applicant, Mr E.D. and Ms D.L. were then escorted to the local police

station. They were released the day after. Although both the applicant and

Mr E.D. had visible injuries, only Mr E.D. underwent a medical

examination. According to the medical findings, he had bruises on his

temple and a haematoma around his right eye.

9. On 23 January 2011 the applicant was examined by a general

practitioner, who found that he had bruises on his chest, back, neck and

face.

10. On 1 February 2011 the applicant lodged a criminal complaint with

the Szeged Public Prosecutors Office against Mr E.D. He submitted that the three who had insulted him had shouted at him Dirty gypsy, do you need a cigarette? Here is money! and thrown cigarettes and money at him. He also maintained that Mr E.D., who presented himself as a police officer

upon his arrival at the scene, had asked the others whether [they] could not handle a dirty little gypsy and, turning to him, had called him a gypsy. He also gave a description of the injuries he had suffered.

Furthermore, the applicant explained that the day after the incident he

had identified Mr E.D. on a social network. He had extracted some of his

posts and submitted them to the Prosecutors Office. 11. In these posts, Mr E.D. commented that the night before he had

been kicking in the head a gypsy lying on the ground when [he] was

overcome by three of his buddies. In reply to favourable posts by other users, Mr E.D. posted an Internet link to a video clip containing a widely

known excerpt from a feature film with overtly intolerant and explicitly

racist language. He added that the list of the types of people loathed by the

character speaking in the clip could be completed with some other types of rubbish living among us.


12. On 7 February 2011 the Public Prosecutors Office opened a criminal investigation against Mr E.D. for the offence of violence against a member of a group within the meaning of section 170 (1) of the Criminal Code.

13. On 17 March 2011 the two police officers who had arrived at the

scene were questioned, as well as Ms D.L. The latter corroborated the

applicants version of the events. The testimony of the police officers did not contain any account of the incident; they had arrived at the scene only

after the fight.

The applicants three acquaintances, whose intervention had ended the fight, were not questioned, their identity remaining unknown to the

prosecution. The applicant was questioned about their contact details,

however the only information he could provide were their nicknames.

14. In parallel, the Szeged Public Prosecutors office initiated an ex officio investigation into the same facts on charges of disorderly conduct

(garzdasg). On 5 July 2011 Mr E.D. was questioned as a suspect, where

he stated that the applicant had provoked him. He admitted to having

pushed the applicant away in self-defence, but claimed that he had neither

hit nor insulted him. He maintained that he had made no statement

concerning the applicants Roma origin and that the fight had not taken place because the applicants Roma origin but because he had been attacked by the latter. As regards his comments on a social network, Mr E.D. stated

that he had posted them for no particular reason and specified that in fact [he] had not been kicking the boys head ... had [he] done so the [applicant] would have suffered more serious injuries.

15. In a decision of 20 July 2011 the Public Prosecutors Office discontinued the investigation into the offence of violence against a member of a group, considering that there was no evidence substantiating that Mr E.D. had attacked the applicant out of racial hatred. Relying on the

applicants complaint, Ms D.L.s testimony, Mr E.D.s statement given as a suspect in the parallel proceedings and the medical evidence, the Public

Prosecutors Office concluded that it could not be established who had provoked the fight and whether there was a causal link between the insults

directed against the applicant and the fight.

The applicant filed a complaint against the discontinuation on 26 July

2011.

16. On 8 August 2011 the applicants lawyer was given the opportunity to study the case-file. On the same day she requested Mr E.D. to be heard as

a suspect, or at least as a witness; she also requested a confrontation

(szembests) between the applicant and Mr E.D. This request was

dismissed on the ground that Mr E.D. had already been heard as a suspect in

the parallel proceedings on charges of disorderly conduct, and the records of

his testimony were attached to the investigation file and used as

documentary evidence.


On 16 August 2011 the applicant also challenged this decision and

requested that further investigative measures to be taken.

17. On 8 September 2011 the Csongrd County Regional Public

Prosecutors Office upheld the first-instance decision, considering that:

Accepting the background of the incident, as recounted by the victim and Ms D.L., although it is likely that the action had racist motives, it cannot be proven sufficiently

for establishing criminal responsibility that is, unequivocally and beyond any doubt that Mr E.D. ill-treated the applicant precisely because of his Roma origin. The racist motive cannot be established, in particular, since before the incident Mr E.D.

had intended to leave the scene and only turned back because of the victims reproach, and the only information about the start of the fight originates in the contradictory

statements of the victim and Mr E.D. Neither the victim nor Ms D.L. could provide

further details as to the question whether after having turned back, Mr E.D. made any

further racist comments before or during the fight. The Facebook post attached to the

criminal complaint only reveals that Mr E.D. had insulted an unnamed and

unidentifiable person of Roma origin the night before. It cannot be established

unequivocally and beyond doubt, either from the post or from the subsequent

messages, that [the insult] took place precisely because of the victims Roma origin.

Based on the above reasons and considering all available information and evidence

in their entirety, Mr E.D.s racist motive is probable at the maximum, but cannot be established beyond doubt.

As regards further investigative measures, the Prosecutors Office stated that given the fundamental contradictions between the statements of

Mr E.D., the applicant and Ms D.L., a confrontation between them had no

prospects of success. Furthermore, Mr E.D. had given a detailed account of

the facts in his testimony given as a suspect in the parallel proceedings,

which rendered futile his further questioning.

18. On 11 May 2012 Mr E.D. was convicted of disorderly conduct by

the Szeged District Court for having got into a fight with the applicant and

was placed on one-year probation.

II. RELEVANT DOMESTIC LAW

19. The Criminal Code, as in force at the material time, provided, in so

far as relevant, as follows:

Violence against any member of a national, ethnic, racial or religious group

Section 174/B

(1) Whoever uses violence against another because that other person belongs to a national, ethnic, racial or religious group, or forces that person by violence or threats

to do or not to do something or to tolerate any conduct commits a felony and shall be

punishable with imprisonment of up to three years.


Disorderly conduct

Section 339

(1) Any person who displays an apparently anti-social and violent conduct aiming to incite indignation or alarm in other people is guilty of a misdemeanor punishable by

imprisonment not exceeding two years, insofar as the act did not result in a more

serious criminal offence.

20. Act no. XIX of 1998 on Criminal Procedure provides as relevant:

Section 6

(2) Criminal proceedings may only be initiated upon the suspicion of a criminal offence and only against a person reasonably suspected of having committed a

criminal offence.

III. RELEVANT INTERNATIONAL MATERIALS

21. A resource guide entitled Preventing and responding to hate crimes,

published by the Organization for Security and Co-operation in Europe

(OSCE) (Office for Democratic Institutions and Human Rights) in 2009

contains the following relevant passages:

Chapter 2 Recognizing hate crimes

The most common flaw in the investigation of hate crimes is the refusal or failure of law enforcement bodies to identify a criminal act as a hate crime. Therefore, for

police officers and for NGOs who receive complaints or interview victims, it is

essential to have some criteria by which to evaluate whether a case might be a hate

crime.

Hate crime indicators are objective facts that signal that a case may involve a hate

crime. If such indicators exist, the incident should be recorded as a possible hate crime

and should trigger further investigation about the motive for the crime. The existence

of such indicators does not prove that the incident was a hate crime. The proof of hate

motivation will come only after a thorough and complete investigation, with a result

confirmed by a court.

Hate crime indicators can be useful for NGOs, as they form an objective and

consistent factual basis upon which to advocate with police or other governmental

agencies for treating incidents as possible hate crimes.

Hate Crime Indicators

National experts and law enforcement agencies have developed guidelines by which

to identify hate crimes, including detailed lists of hate crime indicators. While these

may vary, the most common indicators are listed below.

Victim and Witness Perception

The perception of the victim(s) is a primary indicator of bias motivation. These

perceptions are based on the victims own experience with prejudice, the circumstances of the attack, their identification of the attackers and many other


factors. Sometimes, witnesses perceptions can also provide strong indicators of the apparent motive of the perpetrator.

In some OSCE countries, such as Canada and the United Kingdom, any reported

crime which a victim, witness or police officer believes to have been hate motivated

must be recorded and investigated as a potential hate crime.

The Conduct of the Offender

Perpetrators of hate crimes frequently make their prejudices clear before, during or

after the act. The crucial evidence in most hate crimes consists of the words or

symbols used by the perpetrators themselves. Those who commit hate crimes

generally want to send a message to their victims and to others and these messages,

from shouted epithets to graffiti, are powerful evidence of motivation.

The Characteristics of the Victim and the Perpetrator

Although hate crimes are most commonly thought of as involving attacks on

members of minorities, this is not always the case. Depending on local circumstances,

some hate crimes involve minority-upon-minority attacks, and sometimes minority on

majority this usually happens in places where members of a minority in a larger territory are the majority locally. Some circumstances that may be indicative of a hate

crime include:

The race, religion, ethnicity/national origin, disability status, gender, or sexual orientation of the victim differs from that of the offender;

The victim is a member of a group that is overwhelmingly outnumbered by members of another group in the area where the incident occurred;

The victim is a member of a community that is concentrated within particular areas and was attacked upon leaving that area;

The incident occurred during an incursion by members of a majority group into an area that is predominately populated by members of minorities (this is a pattern

reflecting the historical experience of pogroms, in which attacks were carried out on a

minority population that was largely confined to a particular district neighbourhood);

The victim is a member of a minority who is attacked by a group from members of a different population group; and

There is historical animosity between the group of which the victim is a member and that of the offender.

Characteristics of a victim that may be indicators of hate crime include:

The victim is identifiable as different from the attackers and, often, from the majority community, by such factors as appearance, dress, language or religion;

The victim is a prominent figure, such as a religious leader, rights activist or public spokesperson, in a community that has faced ongoing discrimination; and

The victim was in the company of or married to a member of a minority group.

The characteristics, behavior and background of alleged offenders can also yield

several potential indicators of hate motivation. For example:

Statements, gestures or other behavior before, during or after the incident displaying prejudice or bias against the group or community to which the target or

victim belongs;


Clothing, tattoos or insignia representative of particular extremist movements, e.g., the use of swastikas or other Nazi insignia or paramilitary style uniforms;

The offenders behavior (such as making Nazi salutes or attending rallies or protests organized by hate groups) suggests possible membership in a hate

organization; and

The offender has a history of previous crimes with a similar modus operandi and involving other victims from the same minority group or other minority groups

...

Previous Hate Crimes or Incident

Other indicators of hate crimes include:

Previous similar incidents have occurred in the same area in which members of the same group were targeted;

The victim or victims had received previous harassing or threatening mail or telephone calls based on membership in their group; and

A previous incident or crime was reported that may have sparked a retaliatory hate crime against members of the group presumed responsible.

Mixed Motives

In investigating hate-motivated incidents and crimes, it is important to take into

account all possible motives. For example, an incident in which a person is singled out

for attack because of his or her identity may still be a hate crime even if the person is

also robbed in the course of the incident. A question will arise as to whether the crime

was motivated in whole or in part by prejudice and hatred; in some countries, if there

is any mixed motive it will not be treated as a hate crime.

In many reported cases, individuals who have been targeted for attacks because of

prejudice and hatred have also been victimized in other ways. The fact that they also

had items of value stolen in the course of these attacks a cell phone or money is sometimes used to argue that the incident was not a hate crime. An important

consideration is whether the particular individual was selected as a target because he

or she was identified as a member of a particular ethnic, religious or other group.

22. The Report of the European Commission against Racism and

Intolerance covering the fifth monitoring cycle, issued on the 19 March

2015, contains the following passages:

3. Racist and homo/transphobic violence

53. Racist and homo/transphobic violence fall under Criminal Code Article 216 (violence towards members of a community). According to information provided by

the authorities, between 2009 and 2013, there were 191 reported cases of alleged hate

motivated violence; 94 of these resulted in convictions with 33 prison sentences

handed out. The authorities informed ECRI that 54% of the victims of these offences

were Roma, 8.5% were Jews and 17% involved violence against the Hungarian

majority...

54. Racist violence against Roma has been described as one of the most important

problems faced by Hungary today. This is committed both by extremist groups and by

individuals motivated by racial hatred. Between January 2008 and September 2012,


there were 61 separate attacks against Roma and/or their property, with the use of

Molotov cocktails, hand grenades and guns. The attacks took nine lives, including two

minors and left dozens injured.

23. Relevant extracts from the thematic situation report of the European

Union Fundamental Rights Agency (FRA) entitled Racism, discrimination, intolerance, and extremism: learning from experiences in

Greece and Hungary read as follows:

During FRAs meetings in Hungary, concerns were raised about how the police handle cases involving anti-Roma bias motivation. NEKI informed FRA, for

example, that in an incident in May 2012 in Nagykanizsa, anti-Roma graffiti was

recorded by the police merely as property damage, while the bias motivation was

not taken into account. NEKI filed a complaint with the police, arguing that the

incident should be prosecuted as a crime against the community. The police then

investigated the incident as such, but as no offenders were found, the case was

suspended.

A number of possible explanations were advanced by several of FRAs interlocutors as to why bias motivations are often overlooked by the police. Among

these, the latent climate of intolerance and prejudice that also exists within the

police force was mentioned.

Another contributing factor could be that proving hate crime is more complex,

resource intensive and time consuming than proving other types of crime. Police

officers are often focused on closing cases quickly rather than on investing

considerable resources in identifying bias motivations.

Recognising bias motivation requires special knowledge and training, which

police officers do not always have, as FRA learned from meetings with the police.

24. Relevant extracts from the Report by Nils Muinieks, Council of Europe Commissioner for Human Rights, following his visit to Hungary

from 1 to 4 July 2014, read as follows:

Despite these positive steps, the Hungarian authorities have often been criticised for failing to identify and respond effectively to hate crimes, including by not

investigating possible racial motivation. For the year 2013, the Hungarian

authorities indicated that 48 cases of hate crimes (including cases of hate speech)

were reported and 30 were prosecuted. This represents an increase in the number of

such crimes reported from the 2009 figures (when 15 cases were reported and 18

prosecuted). However, these figures correspond only to the tip of the iceberg as it is

generally agreed that the majority of hate crimes are not recorded as such by the

police or are not even reported to the police, partly due to the lack of trust in this

institution among members of minority groups. Among the reasons behind

underqualification (the prosecution of a crime motivated by hate as a less severe

crime) brought to the attention of the Commissioner feature: the lack of specialised

guidelines and training for law enforcement officials; the workload and turnover of

the few existing specialised hate crime police officers; and the underuse of available

means to investigate hate crimes. It also appears that under pressure to deliver

results, some public prosecutors may prefer pressing charges in respect of basic

crimes as they are easier to substantiate. As concerns more specifically crimes

committed by extremist groups, the need for a better co-operation between the

police and the intelligence services has also been stressed. Finally, victims of hate


crimes do not receive all the necessary and specialised legal and psychological

support they need notably due to deficiencies in the public system of support for

victims of crime.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION

WITH ARTICLE 3 OF THE CONVENTION

25. The applicant complained that the Hungarian authorities had failed

in their obligation to conduct an effective investigation into the racist attack

which he had suffered, and in particular that they had not taken sufficient

action to establish a possible racist motive for the assault. He relied on

Articles 3 and 14 of the Convention, which read as follows:

Article 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 14

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.

26. The Government contested the applicants allegations.

A. Admissibility

27. The Government requested the Court to declare the application

inadmissible for failure to exhaust domestic remedies. Relying on the

Courts decision in Horvth and Vadszi v. Hungary ((dec.), no. 2351/06, 9 November 2010), they submitted that the applicant should have made use

of substitute private prosecution under section 199(2) of the Code of

Criminal Procedure.

28. The applicant submitted that in the case of Borbla Kiss v. Hungary

(no. 59214/11, 26 June 2012), the Government had argued that Ms Kiss had

failed to exhaust domestic remedies by not availing herself of an ordinary

remedy, namely substitute private prosecution under section 199 (2) of the

Code of Criminal Procedure Criminal Procedure, seeking the pursuit of

discontinued criminal proceedings, but that objection had been dismissed by

the Court.

In the applicants submission, substitute private prosecution had no prospect of success either in his case or in general, given the financial

implications and the difficulties in taking supplementary investigative


measures. The applicant further pointed out that in the case of Horvth and

Vadszi (cited above) the Court had not examined the effectiveness of

substitute private prosecution.

29. The third-party intervener, the European Roma Rights Centre,

submitted that Roma persons could not be expected to pursue substitute

private prosecution in cases involving failures by domestic authorities to

investigate hate crimes. In its view, the requirement for them to institute

substitute private prosecution would give the impression that public

authorities have a lesser duty to investigate hate crimes. Furthermore, it

would be particularly unfair to require a member of a disadvantaged group

to carry out investigative activities. Finally, the third-party intervener

considered that if the failure to conduct effective investigations was due to

institutional racism, then to require Roma victims to pursue substitute

private prosecution would expose them to the consequences of challenging

an entrenched aspect of anti-Gypsism.

30. The Court reiterates that the rule of exhaustion of domestic remedies

referred to in Article 35 1 of the Convention obliges applicants to use first

the remedies that are normally available and sufficient in the domestic legal

system to enable them to obtain redress for the breaches alleged. Where

there is a choice of remedies open to an applicant, Article 35 must be

applied to reflect the practical realities of the applicants position in order to ensure the effective protection of the rights and freedoms guaranteed by the

Convention (see, inter alia, Hilal v. the United Kingdom (dec.),

no. 45276/99, 8 February 2000; and Krumpel and Krumpelova v. Slovakia,

no. 56195/00, 43, 5 July 2005). Indeed, where an applicant has a choice of

remedies and their comparative effectiveness is not obvious, the Court tends

to interpret the requirement of exhaustion of domestic remedies in the

applicants favour (see Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, 110, ECHR 2008 (extracts),

and the cases cited therein). Moreover, an applicant who has used a remedy

which is apparently effective and sufficient cannot be required also to have

tried others that were also available but probably no more likely to be

successful (see Ivan Vasilev v. Bulgaria, no. 48130/99, 56, 12 April 2007

and the cases cited therein).

31. In the instant case, the applicant lodged a criminal complaint against

Mr E.D. on charges of violence against a member of group. The ensuing proceedings were capable of leading to the identification and, if appropriate,

punishment of those responsible.

32. In the Courts view, by virtue of this remedy the State was afforded an opportunity to put matters right. The applicant must therefore be

regarded as having brought the substance of his complaint to the notice of

the national authorities and as having sought redress through the national

channels for his complaint. The applicant was thus not required in addition

to pursue the matter by way of substitute private prosecution concerning the


same event, which would have had the same objective as his criminal

complaint (see, mutatis mutandis, Borbla Kiss v. Hungary, cited above,

26; and Matko v. Slovenia, no. 43393/98, 95, 2 November 2006). In any

case, the applicant complained of the alleged ineffectiveness of the

investigation conducted by the authorities rather than about the absence of

prosecution as such.

33. As to the Governments reference to the case of Horvth and Vadszi, the Court considers that its conclusions cannot be transferred to the

present situation, since in that case the applicants did not argue their claim

of racial discrimination in the private prosecution whose effectiveness in

respect of such complaints could not therefore be examined.

34. It follows that the Governments preliminary objection as to non-exhaustion of domestic remedies must be dismissed.

35. Furthermore, the Government argued that Mr E.D.s conviction of disorderly conduct had deprived the applicant of his victim status.

36. The applicant disputed this view submitting that the offence of

which Mr E.D. was convicted had nothing to do with his grievance

consisting of a racially motivated attack.

37. The Court observes that the investigation into disorderly conduct did

not in any way address the applicants allegation of racially biased ill-treatment. Indeed, the hypothesis of the offence of disorderly conduct in

section 339 of the Criminal Code (see paragraph 19 above) does not contain

any element capable of covering a complaint of racially motivated attack.

In these circumstances the Court considers that this conviction was not

susceptible to redressing the applicants complaint under Article 3 of the Convention, and did not deprive the applicant of his victim status. The

application therefore cannot be rejected as incompatible ratione personae

with the provisions of the Convention.

38. The Government lastly submitted that the application was

incompatible ratione materiae with the provisions of the Convention, since

the impugned treatment did not reach the minimum threshold of severity

required for Article 3 to come into play. In their view, this was illustrated by

the fact that the applicant did not press private charges of bodily assault or

infringement of honour.

39. The applicant contested this view saying that the reason for the non-

pursuit of such private charges was his loss of trust in the judicial system,

rather than any insignificance of the attack on him.

40. The Court considers that this issue is closely linked to the merits of

the applicants Article 3 complaint. Therefore it is necessary to join the Governments objection to the merits of that question.

41. The Court further finds that the application is not manifestly ill-

founded within the meaning of Article 35 3 (a) of the Convention. It finds

that it is not inadmissible on any other grounds. It must therefore be

declared admissible.


B. Merits

1. The parties submissions

(a) The applicant

42. The applicant maintained that the attack on him had resulted from

the fact that he was of Roma origin, and that the authorities were reluctant

properly to investigate this. He noted that the Public Prosecutors Office had dismissed his criminal complaint on the ground that there was no evidence

to establish Mr E.D.s criminal responsibility for violence against a member of a group. He contended that the racist statements of the perpetrator were not given due consideration in order to establish his

potentially biased motives. He further submitted that the Prosecutors Office should have assessed whether other indicators of racist motives could be

identified, including Mr E.D.s affiliation with anti-Roma ideologies or groups, evidenced for example by his choice of music and books.

Moreover, the applicant contended that the domestic authorities had

failed to take all the necessary measures to identify further witnesses who

could have given an account of the fight between him and Mr E.D. He also

pointed out that the Prosecutors Office had dismissed his request for further investigative measures, including a confrontation between him and Mr E.D.

(b) The Government

43. The Government stressed that there had been an investigation into

the applicants allegations of an attack on him and the Public Prosecutors Office had established the relevant facts of the case, including the

potentially racist motives of the perpetrator. The investigation authorities

had heard witness testimonies from the applicant and his girlfriend, as well

as the police officers who had arrived at the scene.

In so far as any racial motive might have been at the heart of the incident,

the Government considered that the investigation had adequately focused on

the allegations to that effect. In that context they contested the argument that

any criminal offence committed against a member of a minority should be

considered as one based on racist bias, since such incidents could have other

motives too. They also pointed out that the domestic authorities had

discontinued the investigation into violence against a member of a group, since the racist motives of the perpetrator, and the fact that the reason for

the assault was the applicants Roma origin itself, could not be established beyond reasonable doubt.

(c) The third party

44. The European Roma Rights Centre viewed the issue in the present

case through the lens of anti-Gypsism and maintained that there was a rise in anti-Roma rhetoric, racism and physical violence against the Roma in


Hungary. It pointed to the reports of the United Nations Special Rapporteur

on contemporary forms of racism, racial discrimination, xenophobia, and

related intolerance, of Amnesty International and of the EU Fundamental

Rights Agency, all evidencing patterns of anti-Roma attacks, including

harassment, assault, or threats, and the growth of paramilitary organisations

with racist platforms.

45. It also submitted that the general situation in Hungary showed that

there was an institutional racism against Roma within the State bodies,

evidenced by the failure of the authorities to provide an appropriate and professional service to people because of their colour, culture, or ethnic

origin. It relied on a thematic situation report of the EU Fundamental Rights Agency (entitled Racism, discrimination, intolerance and extremism:

learning from experiences in Greece and Hungary) which showed that there

was a lack of effective implementation of the laws for investigating and

prosecuting racially biased crimes. It also pointed out that the report on the

visit of the Council of Europe Commissioner for Human Rights to Hungary

from 1 to 4 July 2014 expressed concerns about the Hungarian authorities failure to identify and respond effectively to hate crimes.

46. It further argued that vulnerable victims alleging racially-motivated

violence were unlikely to prove beyond reasonable doubt that they were

subjected to discrimination, especially when they were also victims of a

failure on the part of the domestic authorities to carry out an effective

investigation. It maintained that the Courts analysis under Article 14 read in conjunction with the procedural limb of Article 2 or Article 3 (see, for

example, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and

43579/98, ECHR 2005-VII; and ei v. Croatia, no. 40116/02, 31 May 2007) was limited in that it had not addressed the question whether the

failure to carry out an effective investigation in general had been a result of

institutional racism. It invited the Court to find that the failures in the

overall investigation into hate crimes were due to discrimination, depriving

the Roma of access to the evidence needed to prove a violation of Article 14

read in conjunction with the procedural limb of Article 3.

2. The Courts assessment

(a) General principles

47. The Court reiterates that in order to fall within the scope of Article 3,

ill-treatment must attain a minimum level of severity. The assessment of

this minimum is relative by definition, and depends on all the circumstances

of the case, including the duration of the ill-treatment, its physical and

mental effects and, in some cases, the victims sex, age and state of health. Further factors to be taken into account include the purpose of the ill-

treatment and the underlying intention or motivation (see, for example,

El Masri v. the former Yugoslav Republic of Macedonia [GC],


no. 39630/09, 196, ECHR 2012). The Court has considered some types of

treatment inhuman, particularly where it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense

physical and mental suffering, and also degrading because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of

humiliating and debasing them (see, among other authorities, Labita v. Italy

[GC], no. 26772/95, 120, ECHR 2000-IV).

48. Even where the victim did not suffer serious or lasting physical

injuries, the Court has held that corporal punishment inflicted on an

adolescent should be described as degrading in so far as it constituted an assault on precisely that which it is one of the main purposes of Article 3 to protect, namely a persons dignity and physical integrity (see Tyrer v. United Kingdom, 25 April 1978, 33, Series A no. 26). By the same

token, in a case concerning harassment of a person suffering from physical

and mental disabilities, the Court ruled that the feelings of fear and

helplessness caused by the ill-treatment were sufficiently serious to attain

the level of severity required to fall within the scope of Article 3 of the

Convention, even though the applicant had only suffered physical injuries

on one occasion (see orevi v. Croatia, no. 41526/10, 96, ECHR 2012). The Court has on several occasions examined from the angle of Article 3

situations in which the applicants had not suffered any physical injuries

(see, for example, Gfgen v. Germany [GC], no. 22978/05, 131, ECHR

2010, concerning threats of torture; and Kurt v. Turkey, 25 May 1998,

133-34, Reports of Judgments and Decisions 1998-III, relating to the

disappearance of a relative).

49. Furthermore, the European Commission on Human Rights accepted

in the context of acts attributable to State officials that discrimination based

on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 (see Horvth and Vadszi, cited above; and East African Asians v. United Kingdom, nos. 4626/70 and

others, Commission report of 14 December 1973, Decisions and Reports 78,

pp. 57 and 62, 196 and 207). Discriminatory remarks and racist insults

must in any event be considered as an aggravating factor when considering

a given instance of ill-treatment in the light of Article 3 (see Moldovan and

Others v. Romania (no. 2), nos. 41138/98 and 64320/01, 111, ECHR

2005-VII (extracts); and B.S. v. Spain, no. 47159/08, 41, 24 July 2012).

This approach was confirmed in respect of treatment attributable to private

individuals (see Identoba and Others v. Georgia, no. 73235/12, 65,

12 May 2015; Abdu v. Bulgaria, no. 26827/08, 23-24, 11 March 2014;

and Koky and Others v. Slovakia, no. 13624/03, 223-225, 12 June 2012).

50. The Court moreover reiterates that the obligation on High

Contracting Parties under Article 1 of the Convention to secure to everyone

within their jurisdiction the rights and freedoms defined in the Convention,

taken in conjunction with Article 3, requires them to take steps to ensure


that individuals within their jurisdiction are not subjected to ill-treatment,

even administered by private individuals (see M.C. v. Bulgaria,

no. 39272/98, 149, ECHR 2003-XII).

51. Where an individual claims on arguable grounds to have suffered

acts contrary to Article 3, that Article requires the national authorities to

conduct an effective official investigation to establish the facts of the case

and identify and punish those responsible. The Court has held that the

foregoing is necessarily true also in cases where the treatment contrary to

Article 3 of the Convention was inflicted by private individuals (see

Valiulien v. Lithuania, no. 33234/07, 74, 26 March 2013; and ei v. Croatia, no. 40116/02, 67, 31 May 2007)

For the investigation to be regarded as effective, it should in principle be capable of leading to the establishment of the facts of the case and to the

identification and punishment of those responsible. This is not an obligation

of result, but one of means; the authorities must have taken all reasonable

steps available to them to secure the evidence concerning the incident (see

Milanovi v. Serbia, no. 44614/07, 86, 14 December 2010). 52. When investigating violent incidents, State authorities have the

additional duty to take all reasonable steps to unmask any racist motive and

to establish whether or not ethnic hatred or prejudice may have played a role

in the events. Admittedly, proving racial motivation will often be extremely

difficult in practice. The respondent States obligation to investigate possible racist overtones to a violent act is an obligation to use best

endeavours and not absolute. The authorities must do what is reasonable in

the circumstances to collect and secure the evidence, explore all practical

means of discovering the truth and deliver fully reasoned, impartial and

objective decisions, without omitting suspicious facts that may be indicative

of a racially induced violence (see, Bekos and Koutropoulos v. Greece,

no. 15250/02, 69, ECHR 2005-XIII (extracts)).Treating racially induced

violence and brutality on an equal footing with cases that have no racist

overtones would be to turn a blind eye to the specific nature of acts which

are particularly destructive of fundamental rights. A failure to make a

distinction in the way in which situations that are essentially different are

handled may constitute unjustified treatment irreconcilable with Article 14

of the Convention (see Nachova and Others v. Bulgaria [GC],

nos. 43577/98 and 43579/98, 160, ECHR 2005-VII). The Court also

reiterates the particular requirement for an investigation into an attack with

racial overtones to be pursued with vigour and impartiality, having regard to

the need to continuously reassert societys condemnation of racism in order to maintain the confidence of minorities in the ability of the authorities to

protect them from the threat of racist violence (see Amadayev v. Russia,

no. 18114/06, 81, 3 July 2014).

53. Furthermore, the Court has noted in previous cases that as a result of

their turbulent history and constant uprooting, the Roma have become a


specific type of disadvantaged and vulnerable minority. They therefore

require special protection (see D.H. and Others v. the Czech Republic [GC],

no. 57325/00, 182, ECHR 2007-IV). The Court considers that when it

comes to offences committed to the detriment of members of particularly

vulnerable groups, vigorous investigation is required.

54. The Court considers that the obligation on the authorities to seek a

possible link between racist attitudes and a given act of violence is part of

the responsibility incumbent on States under Article 14 of the Convention

taken in conjunction with Article 3, but it is also an aspect of the procedural

obligations flowing from Article 3 of the Convention. Owing to the

interplay of the two provisions, issues such as those raised by the present

case may fall to be examined under one of the two provisions only, with no

separate issue arising under the other, or may require examination under

both Articles. This is a question to be decided in each case depending on the

facts and the nature of the allegations made (see Abdu v. Bulgaria, cited

above, 31; B.S. v. Spain, no. 47159/08, 59-63, 24 July 2012; Bekos and

Koutropoulos, cited above, 70).

55. In the present case, in view of the allegations made by the applicant

to the effect that the ineffectiveness of the investigation stems precisely

from the fact that the authorities insufficiently investigated the racist aspects

of the acts of violence, the Court considers that the complaint should be

considered from the angle of Article 14 read in conjunction with Article 3 of

the Convention.

(b) Application of those principles in the present case

(i) Whether the attack on the applicant reached the minimum threshold of

severity

56. In the present case the applicant was involved in a fight with a young

man who, according to the applicant, violently attacked him. The medical

report issued following the fight specified that he had sustained bruises on

his chest, back, neck and face (see paragraph 9 above). These bodily injuries

were aggravated by the perceived racist motive for the violence perpetrated:

the applicant submitted that before the fight he had been the target of racist

insults from three other men and the perpetrator himself.

57. The Court considers that in the light of these factors and in particular of the potential infringement of human dignity represented by the

racial motive, if any, for the violence the treatment to which the applicant was subjected falls within the scope of Article 3 of the Convention (see

Abdu, cited above, 24). The Governments related objection of incompatibility ratione materiae (see paragraph 38 above) must therefore be

dismissed.


(ii) Whether an effective investigation was conducted into the motive behind

incident

58. In the present case, the applicant lodged a criminal report with the

prosecutors office, bringing the alleged racial motive of the attack to the attention of the authorities. In pursuit of his complaint, the prosecutor

opened an investigation into the offence of violence against a member of a

group within the meaning of section 174/B of the Criminal Code. In view of

the constitutive elements of its hypothesis (see paragraph 19 above), the

Court is satisfied that an investigation into this offence was in principle

capable of revealing the racist motive behind the incident, if any.

It remains to be ascertained whether the investigation undertaken was

adequate, that is, sufficiently thorough, for the purposes of Article 3.

59. The Court recalls in this connection that the lack of conclusions

arising from any given investigation does not, by itself, mean that it was

ineffective: an obligation to investigate is not an obligation of result, but of means (see Mili and Nikezi v. Montenegro, nos. 54999/10 and 10609/11, 98, 28 April 2015).

60. The Court notes at the outset that the authorities investigating the

incident between the applicant and Mr E.D. had before them the statements

of the applicant and Ms D.L., who both maintained that before the fight

Mr E.D. had called the applicant a gypsy.

61. As the Court has previously held in the Nachova case concerning

statements uttered by law enforcement agents in connection with an

operation involving force against persons from an ethnic or other minority,

any evidence of racist verbal abuse is highly relevant to the question

whether or not unlawful, hatred-induced violence has taken place. Where

such evidence comes to light in the investigation, it must be verified and if confirmed a thorough examination of all the facts should be undertaken in order to uncover any possible racist motives (see Nachova, cited above,

164).

Therefore, the impugned utterance, seen against the background of

documented existence of prejudice and hostility against the Roma, called for

verification as to the motives of the perpetrator, namely, if there were

reasons to believe that Mr E.D.s conduct constituted a hate crime (see paragraph 21 above).

62. The Court observes that under section 174/B of the Criminal Code,

as in force at the material time, violence committed against others for their

connection with a particular group was a criminal offence punishable by up

to three years of imprisonment. Therefore, the relevant provision prohibited

the violence and verbal abuse complained of by the applicant. Investigation

was then warranted as to whether the offender had targeted an individual

because of his belonging to one of the protected groups. Indeed, the

domestic authorities noted that the applicant, a person of Roma origin, had

been exposed to violence accompanied by a racist insult and that the crime


might have been motivated by bias, and they took steps to establish the

motives of Mr E.D.

63. Thus, the authorities questioned Mr E.D. about any possible racist

background for his acts, albeit in the context of the parallel criminal

investigation into the offence of disorderly conduct. His statements were

included as documentary evidence in the criminal file concerning the

offence of violence against a member of a group.

64. In the absence of an admission by Mr E.D. as to the presence of

racist motives, the investigation authorities examined whether any such

motives could be inferred from the words, actions and circumstances

surrounding the incident. In particular, they took into consideration the

witness testimonies of the applicant and his girlfriend about Mr E.D.s racist statements before the fight. To resolve the contradictions between these

testimonies and those of Mr E.D., the investigation authorities questioned,

in a targeted way, the other witnesses, that is, the two police officers, about

any exchanges they might have heard before or during the fight between the

applicant and the perpetrator. The officers testimonies were not conclusive, since they arrived at the scene after the fight had been over. Furthermore,

the identities of the applicants acquaintances, whose intervention ended the clash, remained unknown to the Public Prosecutor throughout the

investigation. The Public Prosecutor decided not to hold a confrontation

between the applicant and Mr E.D. only because it was considered to be

devoid of any prospect of success.

65. In any case, the Csongrd County Regional Public Prosecutors Office appears to have accepted the applicants and Ms D.L.s version of the events, in particular their account of the discriminatory statements made by

Mr E.D. (see paragraph 17 above). Even against this background, the

Prosecutors Office felt unable to determine whether the applicants Roma origin had been a relevant factor in the incident. It further noted that it was

impossible to establish who had started to fight, especially since Mr E.D.

was about to leave the scene when the altercation started.

66. The investigation authorities additionally examined whether any

inference could be drawn from any other circumstantial evidence. They

enquired into Mr E.D.s comments posted on a social network in order to verify his affiliation with racist ideology and questioned him about the

meaning of his posts (see paragraph 14 above). Their ensuing conclusion

was that because the posts only revealed that Mr E.D. had insulted an

unnamed and unidentifiable person of Roma origin the night before, it could

not be established unequivocally and beyond doubt, either from the post or

from the subsequent messages, that the insult had taken place because of the

victims Roma origin. The authorities observed that the incident could have had other motives than racial and were satisfied that although there was a

likelihood of racist motives, this could not be established beyond doubt so

as to warrant Mr E.D.s indictment.


67. The Court reiterates that its role is not to rule on the application of

domestic law or adjudicate on the individual guilt of persons charged with

offences, but to review whether and to what extent the competent

authorities, in reaching their conclusion, may be deemed to have submitted

the case to the careful scrutiny required by the procedural obligations of the

Convention (see Abdu, cited above, 33).

68. The Court notes that the prosecuting authorities enquired into the

allegations made by the applicant as to the racist motives of Mr E.D. and

assessed a number of factors brought up by the applicant in substantiation of

his claims, including the perpetrators biased utterances especially after the fight. The Court is satisfied that they did not treat the case in the same way

as one which had no racial overtones.

69. The Court further observes that the authorities refusal to indict Mr E.D. was based on the argument that his racist motives could not be

established unequivocally and beyond doubt. In particular, the reasoning went on to say that, first, it was impossible to establish how exactly the fight

had started, and that, given certain elements (see paragraph 15 above), it

could have had other motives than racial hatred. The Government in their

submissions endorsed this view (see paragraph above 43 above). Second,

for the authorities, Mr E.D.s posts in social media following the incident, although mentioning the victims Roma origin, could not be linked with certainty to the altercation with the applicant and shed no light on his

motives.

70. In regard to the first consideration, the Court takes the view that not

only acts based solely on a victims characteristic can be classified as hate crimes. For the Court, perpetrators may have mixed motives, being

influenced by situational factors equally or stronger than by their biased

attitude towards the group the victim belongs to. Therefore, it finds it

difficult to share the prosecutions concern about proving that the insult was precisely due to the applicant being a Roma.

71. Concerning the second element, the Court notes that Mr E.D.

specifically mentioned in the social media posts the Roma origin of the

victim and the three men who had helped the person get away from the

situation (see paragraph 11 above), which corresponded to the applicants account of the incident in which he was involved. Moreover, in his

testimony given after the incident, Mr E.D. went back on what he had stated

in this post, confirming that it was related to the incident with the applicant,

but denying that he had kicked the victims head, making reference to the not-so-severe injuries sustained by the applicant.

72. The prosecuting authorities did not explain why the content of the

posts and the applicants subsequent testimony could not be unequivocally linked to the impugned events and why Mr E.D.s motives for the attack on the applicant could not be validly deduced from those posts.


73. In this connection the Court finds it material, in addition to the

encouraging comments posted by Mr E.D.s acquaintances, that one of his posts pointed on the Internet to a film scene containing an overly intolerant

and racist message and widely known as such (see paragraph 11 above).

The prosecution failed to give any reason why this could not be regarded as

an evidence of racially biased motives, especially if viewed together with

Mr E.D.s related comment, according to which the list of the types of people loathed by the character speaking in the clip could be completed with

some other types of rubbish living among us (see paragraph 11 as well as paragraph 21 above on the Conduct of the Offender in the OSCE text).

74. Unimpressed by these elements, the prosecution concluded that

Mr E.D.s criminal responsibility for violence against a member of a group could not be established beyond any doubt and discontinued the case, without issuing an indictment.

75. Aware of its subsidiary role, the Court is mindful of it being

prevented from substituting its own assessment of the facts for that of the

national authorities. Nevertheless, it cannot but note that the prosecuting

authorities insistence on identifying an exclusive racist motive, their reluctance to link Mr E.D.s posts to the incident despite remarkable concordances and, lastly, their failure to identify the racist motive in the

face of powerful hate crime indicators such as the posts resulted from a

manifestly unreasonable assessment of the circumstances of the case (see

paragraph 23 above).

This impaired the adequacy of the investigation to an extent that is

irreconcilable with the States obligation in this field to conduct vigorous investigations (see Mili and Nikezi cited above, 99).

76. The combined effect of the above considerations is such as to

amount to a violation of Article 14 read in conjunction with Article 3 of the

Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

77. Article 41 of the Convention provides:

If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only

partial reparation to be made, the Court shall, if necessary, afford just satisfaction to

the injured party.

A. Damage

78. The applicant claimed 10,000 euros (EUR) in respect of non-

pecuniary damage.

79. The Government considered this claim to be excessive.


80. The Court considers that the applicant must have suffered some non-

pecuniary damage on account of the violation found and awards him the full

sum claimed.

B. Costs and expenses

81. The applicant did not make a costs claim. Consequently, no award is

made under this head.

C. Default interest

82. The Court considers it appropriate that the default interest rate

should be based on the marginal lending rate of the European Central Bank,

to which should be added three percentage points.

FOR THESE REASONS, THE COURT,

1. Joins, unanimously, the Governments preliminary objection of incompatibility ratione materiae with the provisions of the Convention

to the merits and dismisses it;

2. Declares, unanimously, the application admissible;

3. Holds, by six votes to one, that there has been violation of Article 14

read in conjunction with Article 3 of the Convention;

4. Holds, by six votes to one,

(a) that the respondent State is to pay the applicant, within three months

from the date on which the judgment becomes final in accordance with

Article 44 2 of the Convention, EUR 10,000 (ten thousand euros), plus

any tax that may be chargeable, in respect of non-pecuniary damage, to

be converted into the currency of the respondent State at the rate

applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until

settlement simple interest shall be payable on the above amount at a rate

equal to the marginal lending rate of the European Central Bank during

the default period plus three percentage points.


Done in English, and notified in writing on 20 October 2015, pursuant to

Rule 77 2 and 3 of the Rules of Court.

Stanley Naismith Il Karaka Registrar President

In accordance with Article 45 2 of the Convention and Rule 74 2 of

the Rules of Court, the separate opinion of Judge J.F. Kjlbro is annexed to

this judgment.

A.I.K.

S.H.N.

BALZS v. HUNGARY JUDGMENT SEPARATE OPINION 23

DISSENTING OPINION OF JUDGE KJLBRO

1. I disagree with the majority that there has been a violation of

Article 14 read in conjunction with Article 3 of the Convention. In other

words, I disagree that the State has failed to fulfil its positive obligation to

conduct an effective investigation into the incident of allegedly racially

motivated violence.

2. It is undisputed that a violent clash took place between the applicant

and a private person (Mr E.D.). The applicant lodged a criminal complaint

and brought the alleged racial motive of the perpetrator to the attention of

the prosecutor. The prosecutor initiated a criminal investigation into the

offence of violence against a member of a group (Section 174/B of the Criminal Code) and investigated into the alleged racial motives for the

attack. Therefore, the question is not whether the prosecutor investigated

into the allegedly racially motivated attack, but if the investigation into the

alleged racist motives was effective as required by Article 3 of the

Convention.

3. An investigation was prompted immediately and completed

expeditiously. The relevant evidence was gathered. Amongst other, the

applicant and his girlfriend were heard as witnesses. So were the two police

officers that arrived at the scene after the incident. An attempt was made to

identify the three acquaintances of the applicant who had intervened after

the incident. The alleged perpetrator was also questioned. Furthermore, the

prosecutor had at his disposal the documents provided, including medical

reports and prints of posts from a social network. The majority have not

pointed to any lacking investigative measures or concreate shortcomings in

the gathering of evidence that could justify finding the investigation

ineffective.

4. In fact, the only basis for finding of a violation is the prosecutors assessment of the evidence and decision to discontinue the investigation. In

the assessment of my colleagues, the prosecutors assessment resulted from a manifestly unreasonable assessment of the circumstances of the case (see paragraph 77 of the judgment). I firmly disagree with that statement.

5. It transpires clearly from the reasons given by the prosecutor that the

decision to discontinue the investigation into the offence of violence against a member of a group was based on an assessment that the offence cannot be proven sufficiently for establishing criminal responsibility and that the racist motive ... cannot be established beyond doubt ... (see paragraph 17 of the judgment). In other words, the prosecutor was of the

opinion, on the basis of an assessment of all the material, that the evidence

was insufficient to secure a conviction of the alleged perpetrator.

6. The positive obligation to conduct an effective investigation is an

obligation of means, not of result (Mili and Nikezi v. Montenegro,

24 BALZS v. HUNGARY JUDGMENT SEPARATE OPINION

nos. 54999/10 and 10609/11, 94, 28 April 2015), and it is not the task of

the Court to assess the criminal responsibility of individuals (Avar v. Turkey, no. 25657/94, 284, ECHR 2001-VII (extracts)). Furthermore,

having regard to the presumption of innocence as guaranteed by Article 6

2 of the Convention as well as the well-established principle of objectivity

in criminal law, the Convention cannot be interpreted as requiring the

prosecutor to indict and press criminal charges against a person, if, in the

assessment of the prosecutor and on the basis of a proper assessment of all

the relevant evidence, no criminal offence has been committed, or the

evidence is insufficient to secure a conviction. Therefore, in case the

investigation performed at domestic level has been effective in the sense of

gathering all the relevant evidence, the Court should accept the assessment

of the evidence performed by the domestic authorities unless the assessment

is arbitrary or manifestly unreasonable.

7. In my view, there is no basis for saying that the decision of the

prosecutor to discontinue the investigation into violence against a member of a group was arbitrary or manifestly unreasonable or that it was not based on an adequate assessment of all the relevant factual elements in the case (Mili and Nikezi v. Montenegro, nos. 54999/10 and 10609/11, 99, 28 April 2015).

8. In support of the conclusion that the prosecutors assessment resulted from a manifestly unreasonable assessment of the circumstances of the

case, the majority mention three elements: (1) the prosecutors assessment of the racist motive (paragraph 72 of the judgment), (2) the significance of

the perpetrators posts on the social network (paragraph 73-74) and (3) the importance of the perpetrators link to a film on a social network

(paragraph 75 of the judgment).

9. Firstly, as regards the racist motive, it follows from Section 174/B of

the Criminal Code that the prosecutor, in order to secure a conviction, has to

prove beyond reasonable doubt that the violence was inflicted against the

victim because that other person belongs to a ... ethnic, racial ... group. The prosecutor explained in the reasons given for his decision (paragraph 17

of the judgment) why it would not be possible to prove that the violence

was inflicted because of the Roma origin of the applicant. In the assessment of the prosecutor, the offence cannot be proven sufficiently for establishing criminal responsibility and that the racist motive ... cannot be established beyond doubt ... I fail to see how the majoritys reference to the sufficiency of mixed motives has any bearing on the assessment of the case. The prosecutor assessed that he could not prove the link between a

racist motive and the violence. The prosecutor referred to the fact that the

perpetrator had intended to leave the scene and only turned back because of the victims reproach and that the only information about the start of the fight originates in the contradictory statements of the victim and [the

perpetrator]. My colleagues may disagree with that assessment, but there is

BALZS v. HUNGARY JUDGMENT SEPARATE OPINION 25

insufficient basis for characterising the assessment as arbitrary or manifestly unreasonable.

10. Secondly, as regards the importance of the posts on the social

network, my colleagues criticize the prosecutor for not having explained

why the content of the posts and the applicants subsequent testimony could not be unequivocally linked to the impugned events and why [the

perpetrators] motives for the attack on the applicant could not be validly

deduced from those posts (see paragraph 73 of the judgment). However, my colleagues fail to recognize the difference between violence against a

person who is of Roma origin, and violence against a person because of the

persons Roma origin. In the first situation the ethnic origin of the victim is a

statement of fact, in the other it is the cause of the violence. It transpires

clearly from the reasoning of the decision that the prosecutor assessed that

the posts were insufficient to prove that the incident took place because of the victims Roma origin. Again, my colleagues may disagree with that assessment, but there is insufficient basis for characterising the assessment

as arbitrary or manifestly unreasonable. 11. Thirdly, as regards the link to the racist film in one of the posts of

the perpetrator on the social network, my colleagues criticize the prosecutor

for having failed to give any reason why this cannot be regarded as an evidence of racially biased motives (see paragraph 75 of the judgment). However, the prosecutor clearly stated that it could not be proven either from the post or from the subsequent messages that the incident took place because of the victims Roma origin (see paragraph 17 of the judgment). My colleagues fail to recognize that the fact that a person has expressed

views that may be interpreted as racist does not imply that everything the

person does is racially motivated. Again, my colleagues may disagree with

that assessment, but there is insufficient basis for characterising the

assessment as arbitrary or manifestly unreasonable. 12. In my view, the majority is acting as a fourth instance court

substituting their own assessment of the evidence for that of the domestic

authorities. The judgment can only be read as criticizing the prosecutor for

not having indicted the perpetrator and brought the case before the criminal

courts.

13. However, as already mentioned, the Convention cannot be

interpreted as requiring the prosecutor to indict and press criminal charges

against a person, if, in the assessment of the prosecutor and on the basis of a

proper assessment of all the relevant evidence, no criminal offence has been

committed, or the evidence is insufficient to secure a conviction.

Furthermore, as already mentioned, there is no basis for saying that the

decision of the prosecutor to discontinue the investigation into violence against a member of a group was arbitrary or manifestly unreasonable or that it was not based on an adequate assessment of all the relevant factual elements in the case.

26 BALZS v. HUNGARY JUDGMENT SEPARATE OPINION

14. I would like to underline another aspect. The applicant has

complained of the alleged ineffectiveness of the investigation conducted by

the authorities rather than about the absence of prosecution as such (see

paragraph 32 of the judgment). My colleagues do not criticize the domestic

investigation for being ineffective in the sense of not having secured all the

relevant evidence, but like the applicant they are in fact criticizing the

prosecutors assessment of the evidence. In this context it is important to notice that it was open to the applicant, if he was dissatisfied with the

prosecutors assessment of the evidence, to institute subsidiary private prosecution (Section 199(2) of the Code of Criminal Procedure), had they

wanted a courts assessment of the facts of the case. This was not done. Rather, the applicant turned to the European Court of Human Rights that

has now told the domestic prosecutor, albeit indirectly, that he should have

indicted the perpetrator and brought the case before criminal courts,

irrespective of the fact that the evidence, in the assessment of the

prosecutor, was insufficient to secure a conviction, as the decision of the

prosecutor, according to the majority, results from a manifestly unreasonable assessment of the circumstances of the case.

15. For the reasons mentioned, there has, in my view, been no violation

of Article 14 read in conjunction with Article 3 of the Convention.

case of balazs v. hungary

Documents