Last Updated on June 14, 2022 by LawEuro
Information Note on the Court’s case-law 263
June 2022
Stoyanova v. Bulgaria – 56070/18
Judgment 14.6.2022 [Section IV]
Article 14
Discrimination
Homophobic motives underlying a murder not constituting a statutory aggravating factor and having no measurable effect on sentencing: violation
Facts – In 2008 three men attacked the applicant’s son because they thought that he looked like a homosexual and beat and choked him to death. They had on several previous occasions assaulted other people for the same reason. Two of the attackers were tried and found guilty of aggravated murder – the only statutory aggravating factor accepted by the courts being that they had killed the victim in a particularly painful way – and sentenced to, respectively, ten and four-and-a-half years’ imprisonment. These sentences were below the statutory minimum and the lower sentence of the second attacker was due to his being below eighteen at the time of the offence. The third attacker retained the status of a witness. Albeit establishing the gratuitously homophobic motives for the attack, the domestic courts could not explicitly treat them as a further statutory aggravating factor, since the Bulgarian Criminal Code did not provide for that.
Law – Article 14 taken in conjunction with Article 2: The core issue was whether Bulgarian criminal law and its application by the domestic courts in this case had made it possible to respond appropriately to those motives.
Under the Bulgarian Criminal Code murder motivated by hostility towards the victim on account of his or her actual or presumed sexual orientation was not as such “aggravated” or otherwise treated as a more serious offence on account of the special discriminatory motive that underlay it. The authorities perceived this as a lacuna which they had unsuccessfully sought to fill. In particular, the argument made both by the prosecution and the applicant, who had joined the proceedings as a private prosecutor, to characterise those motives as hooligan ones which were a statutory aggravating factor under the Criminal Code, was dismissed by the courts on the basis that homophobic and hooligan motives differed. Although it was not for the Court to say whether that ruling was correct in terms of domestic law, and without intending to express any approval or disapproval of it, the national courts could not be expected to discharge their positive obligations under Article 14 taken together with Article 2 by breaching the requirements of Article 7, one of which was that the criminal law was not to be construed extensively to the detriment of the accused.
Although the first-instance court and the court of appeal had taken the homophobic motives as an individual aggravating factor when fixing the sentences within the statutory range, it had not been clear from their reasoning what weight they had ascribed to that factor in their overall assessment of the mitigating and aggravating factors pertaining to each of the two offenders. Further, the Supreme Court of Cassation in its assessment of those factors, in contrast to both of the lower courts, had not even mentioned the homophobic motives for the attack, even though they had plainly been a key feature of the case, and had focussed on other factors when fixing the sentences, chiefly mitigating ones. It could not therefore be said that the homophobic motives for the attack had any measurable effect at that level of the analysis. Indeed, in view of the usual approach of the Bulgarian courts to the assessment of the interplay between mitigating and aggravating factors for the purpose of fixing a sentence within the prescribed statutory range, it was normally not possible to attribute specific weight to any one such factor.
Without opining on the fairness of the sentences, and although ultimately, it could not be said that the sentences had been manifestly disproportionate to the seriousness of the attackers’ act, as that notion was understood in the Court’s case-law, it was concerning that, in spite of the particular gravity and viciousness of the attack on the applicant’s son, the Supreme Court of Cassation (as the first instance court but in contrast to the court of appeal) had considered that the attackers deserved special leniency, and had chosen to fix their sentences well below the statutory minimum, especially since under Bulgarian criminal law that was a possibility reserved only for situations in which even a sentence fixed at that minimum would be unduly harsh.
In sum, while the courts had clearly established that the attack on the applicant’s son had been motivated by the attackers’ hostility towards people whom they had perceived to be homosexuals, they had not attached to that finding any tangible legal consequences. This omission had been chiefly due to the fact that the criminal law had not properly equipped those courts to do so rather than to the manner in which they had dealt with the case. It followed that the State’s response to the attack against the applicant’s son had not in sufficient measure discharged its duty to ensure that deadly attacks motivated by hostility towards victims’ actual or presumed sexual orientation did not remain without an appropriate response.
Conclusion: violation (unanimously)
Article 46: The breach found in this case appeared to be of a systemic character; it had resulted, depending in how the matter was seen, either from a lacuna in the Bulgarian Criminal Code or from the way in which the Bulgarian courts had construed and applied the relevant provisions of that Code. Although it was not for the Court to say whether one or the other had to change to avoid future breaches of this kind, Bulgaria had to ensure that violent attacks (in particular, those resulting in the victim’s death) motivated by hostility towards the victim’s actual or presumed sexual orientation were in some way treated as aggravated in criminal-law terms, in full compliance with the requirement that criminal law was not to be construed extensively to the detriment of the accused.
Article 41: EUR 7,000 in respect of non-pecuniary damage.
(See also Myumyun v. Bulgaria, 67258/13, 3 November 2015, S.M. v. Croatia [GC], 60561/14, 25 June 2020, Legal Summary; Sabalić v. Croatia, 50231/13, 14 January 2021, Legal Summary; Advisory opinion on the applicability of statutes of limitation to prosecution, conviction and punishment in respect of an offence constituting, in substance, an act of torture [GC], request P16-2021-001, Armenian Court of Cassation, 26 April 2022, Legal Summary)
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