CASE OF BALÁZS v. HUNGARY
Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
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 applicant’s 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 applicant’s 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 Prosecutor’s 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 Prosecutor’s 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 Prosecutor’s 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 applicant’s 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 applicant’s 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 Prosecutor’s office initiated an ex officio investigation into the same facts on charges of disorderly conduct (garázdaság). 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 applicant’s Roma origin and that the fight had not taken place because the applicant’s 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 boy’s head ... had [he] done so the [applicant] would have suffered more serious injuries”. 15. In a decision of 20 July 2011 the Public Prosecutor’s 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 applicant’s 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 Prosecutor’s 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 applicant’s 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 (szembesítés) 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 Csongrád County Regional Public Prosecutor’s 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 victim’s 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 victim’s 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 Prosecutor’s 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.