Historical Judgment of the European Court of Human Rights against Croatia: Is it changing the life of persons with disabilities?
On 24 July 2012, the European Court of Human Rights has for the first time in its history decided that the State’s failure to protect a person with a disability and his mother against long-term harassment violates their human rights. Since the judgment has a significant legal impact in all countries of the Council of Europe, persons with disabilities should use it to ask their government for protection against violence and harassment based on their disability.
European Court found several breaches of the Convention in relation to the Croatian authorities’ failure to put an end to long-term harassment against disabled man and his mother.
On 24 July 2012, the European Court of Human Rights published its judgment in the case of Dordevic v Croatia, concerning the ongoing abuse and harassment over many years of a disabled man (Dalibor Dordevic) and of his mother (Radmila Dordevic) living in Zagreb by a group of youths. The European Court of Human Rights found violations of Articles 3 (prohibition of inhuman and degrading treatment), 8 (right to private and family life) and 13 (right to an effective remedy) on account of the authorities’ failure to act effectively in order to end the abuse. This is the first disability hate crime case decided by the Court. Hate crime against disabled persons whether living in the community or inside institutions is a widespread phenomenon, well-documented in countries such as the United Kingdom, but less known and understood in the rest of Europe. It is hoped that this judgment contributes to greater awareness of disability hate crime in Croatia and across Europe and more resolute action against it.
The applicants, two Croatian nationals of Serbian nationality, live together in a ground-floor flat in Zagreb. Dalibor has a combination of physical and intellectual disabilities, and was deprived of his legal capacity and placed under his mother’s guardianship. Since 2006, the applicants have suffered ongoing abuse and harassment by a group of youths who live and attend a school in the same neighbourhood. Most harassment has consisted of relatively low-level anti-social behaviour, including name-calling, spitting, making lewd comments, yelling, drawing insulting messages on the pavement in front of the applicants’ flat and causing damage to the applicants’ windows, balcony and door. This treatment mostly occurred at the same time of the day, sometimes even daily – in the afternoon when children returned from school, in the evening, when they congregated around a bench situated in front of the applicants’ flat and sometimes even during the night. The perpetrators mocked the son for his disability, but also frequently referred to both applicants’ ethnicity in derogatory terms. Lately, harassment escalated in more serious physical abuse against Dalibor – the youths burnt him with cigarettes and pushed him against walls and fences, causing him to fall on the ground.
The applicants informed the authorities about their plight as early as 2008, but nothing much was done to put a stop to it. The police sought to evade any responsibility by claiming that the perpetrators were underage and thus not criminally liable, but failed even to identify them. The social services, the school the perpetrators attended and other authorities were equally ineffectual.
In a judgment informed by the Un Convention on the Rights of Persons with Disabilities and selected Council of Europe standards in the area of disability, the Court considered that, with respect to Dalibor, these incidents taken together were serious enough as to engage the State’s responsibility under Article 3 concerning the prohibition of inhuman and degrading treatment. The Court stressed that the State failed in its duty to “address acts of violence and harassment which had already occurred”, “take sufficient steps to ascertain the extent of the problem” and “prevent further abuse from taking place”. The Court slammed the authorities for the lack of a systematic approach, for the failure to adopt any mechanisms to monitor the events, for the absence of any meaningful social services involvement and of any assistance from relevant experts who could have worked with the perpetrators, and the absence of any specialised counseling for Dalibor. In finding a violation of the right to private and family life under Article 8 with respect to Radmila, the Court acknowledged for the first time the impact of disability hate crime on the families of the primary victim.
Significantly, the Court analysed in great detail the remedies available in Croatia for complaints of disability hate crime perpetrated by minors and concluded that none were available at the time. In particular, the Court alluded to the fact that this was a systemic problem in Croatia, especially considering that it was not apparent which authorities had the primary legal duty to act in circumstances such as those in the case at hand. The Court therefore found an additional violation of Article 13 concerning the right to an effective remedy.
When the victims brought the case to the European Court of Human Rights, the Court decided that Croatia had failed:
- to protect the first applicant from inhuman and degrading treatment. The Court acknowledged that different individual incidents can, when perpetrated over a longer period of time meet the minimum level of severity necessary to amount inhuman and degrading treatment (art. 3 European Convention for the Protection of Human Rights and Fundamental Freedoms);
- to protect the mother’s right to privacy and family life (art. 8 European Convention);
- to provide effective remedies for the applicants when being confronted with a hate crime motivated by hostility based on the victim’s disability (art. 13 European Convention).
INTERIGHTS acted in this case as advisors to counsel, Zagreb-based lawyer Ms. Ines Bojić. The European Disability Forum submitted a third-party intervention in this case.
The European Disability Forum (EDF) submitted information in the form of a third-party intervention in this case to the Court. EDF highlighted that these hate crimes against persons with disabilities are a widespread phenomenon, but remain misunderstood and, consequently, underreported.
EDF would like to take the opportunity of this historical judgment to raise awareness amongst our members and to encourage them to take action on a national level against disability hate crime. While being directly addressed to the Croatian government, this judgment has nevertheless far-reaching legal impact in all members of the Council of Europe. “Each government has the obligation to ensure that violence and harassment against persons with disabilities is not considered as a common criminal offence, but as a hate crime aggravated by hostility based on disability”, stressed EDF President, Yannis Vardakastanis.