Published on 10 May 2021

FOURTH SECTION

Application no. 56070/18 Hristina Ivanova STOYANOVA against Bulgaria lodged on 22 November 2018 communicated on 19 April 2021

SUBJECT MATTER OF THE CASE

In 2008 three men beat and choked the applicant ’ s son to death in a park in Sofia. They attacked him because they thought that he looked like a homosexual; they had several times assaulted other people for that reason.

Two of those men, then eighteen and seventeen years old, were tried for murder. The prosecution underlined , in particular, that their act had been motivated by their assumption that the victim was a homosexual.

The Sofia City Court convicted the two men of murder committed in a way causing the victim serious pain, contrary to Articles 115 and 116 § 1 (6) of the Criminal Code. It acquitted them of the additional charge that they had acted out of hooligan motives (Article 116 § 1 (11)), finding that the homophobic motives for their assault had not prompted their escalating it into a homicide. It also held that the evidence did not permit a firm conclusion that their decision to escalate the initial assault into a homicide had been based on hooligan motives. It sentenced them to, respectively, thirteen years ’ and four years ’ and ten months ’ imprisonment. In fixing the sentences, the court had regard to, inter alia , the homophobic motives for the assault, which it saw as an aggravating circumstance in the specific case (see прис. № 199 от 22.06.2015 г. по н. о. х. д. № 3766/2013 г., СГС ).

The applicant, who had joined the proceedings as a private prosecutor and civil claimant, appealed against the acquittal under Article 116 § 1 (11) and the sentences. The Sofia Court of Appeal upheld the acquittal, holding that homophobic motives could not be seen as hooligan ones within the meaning of Article 116 § 1 (11). It also held that the lower court had been incorrect to find that the two men had intended to kill, as the precise way in which they had acted in the course of the assault rather suggested that they had just been aware of, but indifferent to, the risk that the applicant ’ s son might choke to death (oblique intent). However, the court increased their sentences to, respectively, fifteen and six years ’ imprisonment, based on its own assessment of the balance of aggravating and mitigating circumstances (see реш. № 330 от 12.07.2017 г. по н. д. № 84/2016 г., САС ).

The applicant appealed on points of law, challenging the Sofia Court of Appeal ’ s rulings on the form of the mens rea and the hooligan motives. On 21 June 2018 the Supreme Court of Cassation upheld both rulings, as well as the remainder of the appellate judgment, but reduced the sentences of the two men to, respectively, ten and four-and-a-half years ’ imprisonment (see реш. № 39 от 21.06.2018 г. по н. д. № 1258/2017 г., ВКС, III н. о. ).

The applicant complains under Article 14 of the Convention read in conjunction with Article 2 of the Convention that (a) under Bulgarian criminal law homophobic motives are not, as such, a statutory aggravating factor in relation to murder, and that (b) the Bulgarian courts refused to characterise the homophobic motives underlying her son ’ s murder as hooligan ones.

QUESTION TO THE PARTIES

Was the alleged failure of the Bulgarian courts – said to be due to, in particular, the fact that under Bulgarian criminal law homophobic motives are not, as such, a statutory aggravating factor – to take proper account of the homophobic motives for the assault which led to the death of the applicant ’ s son in breach of Article 14 of the Convention read in conjunction with Article 2 of the Convention (see, mutatis mutandis , Identoba and Others v. Georgia , no. 73235/12, § § 67 in fine and 77, 12 May 2015; M.C. and A.C. v. Romania , no. 12060/12, § § 113 in fine and 124, 12 April 2016; and Sabalić v. Croatia , no. 50231/13, §§ 94 in fine , 98 (iii) and 102, 14 January 2021 )?