Communicated on 10 November 2016

THIRD SECTION

Application no. 655/16 Žaneta LAKATOÅ OVÁ and Kristián LAKATOÅ against Slovakia lodged on 21 December 2015

STATEMENT OF FACTS

1. The applicants, Ms Žaneta Lakatošová and Mr Kristián Lakatoš , who are a married couple, are Slovak nationals of Roma origin. They were born in 1986 and live in Hurbanovo . They are represented before the Court by Mr András Ujlaky of the European Roma Rights Centre, based in Budapest, Hungary.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Events of 16 June 2012

3. On 16 June 2012 Mr J., a municipal police officer who was off duty that day, took an illegally purchased gun and drove in his private car to the town of Hurbanovo , where around a thousand Roma people live. He stopped in front of the applicants ’ house, entered the property and, without saying a word, started firing bullets at the family members who happened to be in the yard. He stopped shooting once the cartridge of the gun was empty. As a result, three members of the applicants ’ family, namely the second applicant ’ s father, brother and brother-in-law, were shot dead and both the applicants were seriously injured. The first applicant was injured in the hips and thighs and the second applicant in the liver, lower appendix, stomach and elbow.

4. After the shooting, Mr J. returned to the car. On his way he met two other Roma men, members of the applicants ’ family, and threatened to kill them. Then he got to his car and drove to the house of the mayor of Hurbanovo , in front of which he was eventually arrested. The police seized his gun, which was fully loaded.

2. Criminal proceedings

a) Pre-trial stage

5 . Mr J. was charged with the serious criminal offence of premeditated first-degree murder, partly accomplished and partly attempted ( zločin úkladnej vraždy , sčasti dokonaný a sčasti v štádiu pokusu ), in connection with the serious criminal offences of prohibited acquisition and possession of a firearm and forcible entry into dwelling.

6. During the pre-trial questioning he provided several statements concerning his recollection of the events, confessed to the charges on all counts, and expressed remorse. His statements can be summarised as follows:

7. Mr J. stated that he was not able to explain the reasons for his action, that he did not remember most of the events, and that he had wanted to commit suicide shortly after the shooting. He also asserted that he had not acted out of vengeance or any other specific motive, and denied any racial grounds. He had just fired at some people, not at a specific person, and could not remember how many times he had fired. He also declared that he did not know the applicants ’ family personally, only by sight, having had dealings with them as a municipal police officer. He used to go to Hurbanovo to deal with problems of public order, and remembered meeting some members of the applicants ’ family, in particular the late brother of the second applicant, since he had once slapped him because of his aggressive behaviour after he had been caught stealing.

Mr J. further stated that when he had been preparing his gun he might have thought about the need to deal with Roma from Hurbanovo and about how to resolve the public order issues in the town. He felt as though he had been dealing with this for a long time without any success or effectiveness, which rendered him nervous and tense and might have been the cause of his action.

8. During the investigation of the crime several witnesses, including the applicants ’ relatives, stated that they had not been aware of any disputes between the victims and the municipal police officer.

9. Expert examinations by two experts in psychiatry and one expert in clinical psychology were ordered.

b) Expert opinions

10. The experts were asked questions, inter alia, concerning Mr J. ’ s mental state and possible illness or disorder, his ability to recognise the lawfulness of his actions and control his own behaviour, the possible motive for his actions from a psychological point of view, his ability to relate the course of events, and his credibility.

11. The report concluded that Mr J. did not remember clearly what had happened. However, he was able to credibly reconstruct some events and realise that he had fired at someone. He also mentioned some incidents he and his colleagues had had with people of Roma origin, his worries, his fear of them, and his despair at his inability to deal with them.

12. The report stated that Mr J. had been building emotional tension for a long time, which had been released by “the escalation effect” with the possible impact of alcohol consumed the night before. He was suffering from a temporary mental disorder, known as “abnormal short-failure reaction with clinical course of the escalation effect”, which resulted in his becoming of unsound mind at the critical moment. Therefore, while he was committing the crime he had a significantly reduced ability to recognise the unlawfulness of his actions and to control them.

13. Furthermore, the clinical psychologist concluded that Mr J. was not suffering from any mental illness such as psychosis, or from any dependency. Rather, he had been developing a paranoid personality connected to an intense fear of aggressive behaviour of some “Roma fellow citizens” towards him or people close to him. This triggered a need to protect himself, in the sense of a paranoid defence. He developed a “paradoxically altruistic motive of a radical solution of public order issues in the town, in particular towards the part of it which contained the non ‑ adaptable and problematic Roma people”. An important motive determining his behaviour before and during the crime could be his continual frustration about his own work, and that he was unable to resolve the public order issues in the town, in particular the problems concerning the Roma part of the population. He had been developing burnout syndrome as well. However, the immediate motive behind his behaviour at the critical moment was unclear.

c) Hearing

14. On 11 December 2012 a bill of indictment was lodged against Mr. J with the Specialised Criminal Court (“the SCC”).

Between 25 and 28 March 2013 a public hearing took place, during which Mr J. gave no evidence, stated that he did not deny the charges, and responded affirmatively to the presiding judge ’ s questions as to whether he understood the facts of the crime, whether his defence rights had been properly granted, whether he comprehended the legal status of the offence, whether he had been informed about the penalties in law for the criminal offences in question, and whether he had confessed to the crime voluntarily.

15 . Two of the experts testified and referred to the conclusions of their report. During the hearing, the expert in psychiatry stated that it was not within their competence to assess the issue of racism.

16. The applicants had joined the criminal proceedings as a civil party. Their laywer claimed compensation for damage on their behalf and contested the objective nature and the accuracy of the experts ’ conclusions. He also proposed that a second expert opinion be ordered: this was rejected by the court. The court further reasoned that the issue of the accused ’ s motive for the purposes of the claim for damages was of a legal nature and could thus not be assessed by the experts. Their lawyer also attempted to question one of the experts as to Mr J. ’ s motive. However since a civil party could raise only issues concerning the claim for damages, the court did not allow him to put those questions.

d) Judgment

17. On 27 March 2013 the SCC delivered a simplified version of the judgment containing a brief description of the criminal act and the sentencing part pursuant to Article 172 of the Code of Criminal Procedure. This was due to the fact that the accused, Mr J., his lawyer, and the prosecutor had all waived their right to appeal.

18. The SCC found Mr J. guilty of a serious criminal offence as charged (see paragraph 5). The court concluded, inter alia, that the accused had left the house “with a view to definitely resolving the problem with the unassimilated citizens of Hurbanovo by causing their death” and had fired eight times at people who happened to be in the yard of the house, killing three people and injuring two.

19. Mr J. was sentenced to nine years ’ imprisonment. His gun was forfeited and protective psychological treatment in an institution was ordered for him, with protective supervision amounting to three years.

20. The applicants claim for damages was referred to civil courts.

21. On 18 September 2013 the applicants ’ appeal against the judgment was rejected by the Supreme Court. It concluded that the applicants as civil parties were not authorised to challenge the judgment in respect of the guilt and sentence of Mr. J.; their appeal could have been directed only against the ruling on compensation for damage. However, since the applicants had been referred to the civil courts to claim such compensation, and having regard to the fact that those proceedings were ongoing at the material time, the Supreme Court considered their appeal premature in this part.

22. The applicants together with other injured parties also sought leave from the Minister of Justice to lodge an extraordinary appeal on points of law; this was refused.

3. Constitutional proceedings

23. The applicants lodged a constitutional complaint against the judgment delivered by the SCC. They alleged a violation of Articles 2, 6, 8, 13 and 14 of the Convention and their Constitution equivalents.

In sum, they claimed that the SCC had erroneously concluded that Mr J. had diminished soundness of mind at the time the crime was committed, and as a consequence had imposed an inappropriately low sentence which did not have any preventive function for the future.

They further complained about the ineffectiveness of the criminal prosecution due to the questionable quality of the expert report and the alleged bias of its authors, the court ’ s refusal to order a second expert opinion, that it had been impossible for their lawyer to ask questions and cross ‑ examine the expert witnesses, the absence of a reasoning of the final judgment, and the lack of assessment of the racial overtone of the crime.

They also alleged that they had had no opportunity to challenge the convicting judgment in their position of civil parties in the criminal proceedings, apart from the part concerning the compensation for damage.

24 . On 27 May 2015 the Constitutional Court (file no. II. ÚS 328/2015 ) rejected the applicants ’ complaint. In sum, it held that the impugned judgment had been delivered in accordance with the Code of Criminal Procedure. It further continued that even if it had found the lack of reasoning incorrect it could not have found any violation of the applicants ’ constitutional rights on the basis of that conclusion. In so far as the applicants challenged the law allowing the SCC to deliver a simplified judgment, their inability to appeal such judgment or challenge the inadequately low sentence imposed, the Constitutional Court observed that applicants could not challenge the incompatibility of the law with the Constitution.

In addition, the Constitutional Court scrutinised the inadequacy of the sentence and summarised that the accused had been diagnosed with diminished soundness of mind at the time of the commission of the crime. This was the conclusion reached by a lawfully obtained expert report, which also examined the motive of the accused and provided a comprehensive explanation in that regard. The criminal court had a margin of discretion to impose such a sentence, as long as it was done within the law.

As to the applicants ’ complaint about the lack of a decision on their claim for damages in the criminal proceedings and the lack of the court ’ s reasoning in respect of their claim on damages, the Constitutional Court referred to the Supreme Court ’ s reasoning and rejected this part of the complaint.

4. Other relevant proceedings

25. After the SCC referred the applicants to the civil courts with their claim for damages, they joined the civil proceedings of their late relatives ’ family members, in which they sought compensation for damage. These proceedings are still ongoing.

26 . On 18 June 2013 the Ministry of Justice awarded the first applicant a sum of 2,358 euros (EUR) and the second applicant EUR 7,545.60 in accordance with the Act no. 215/2006 Coll. on compensation to victims of violent crimes. Furthermore, the second applicant received EUR 4,090 on account of his father ’ s death.

27. On 9 March 2015 the District Prosecutor ’ s Office dismissed the applicants ’ criminal complaint against Mr. J., which was based on the suspicion that he had committed a criminal offence by disposing of property to defraud creditors ( poškodzovanie veriteľa ) by transferring the title to his house to his daughter and giving EUR 5,000 to his wife as a gift.

B . Relevant domestic law and practice

1. Criminal Code (Law no. 300/2005 Coll., as amended)

28. Part two of the Criminal Code, in particular Article 140, explains what a specific motive for the commission of a crime represents. One of the grounds of a specific motive is the commission of a crime on the grounds of national, ethnic and racial hatred, or hatred based on skin colour, sexual orientation, and so on.

29 . Article 144 provides that any person who intentionally kills another person with premeditation shall be liable to a term of imprisonment of twenty to twenty-five years. It further provides that if a person commits such a crime with a specific motive, he or she shall be subject to a term of imprisonment of twenty-five years or life imprisonment.

2. Code of Criminal Procedure (Law no. 301/2005 Coll., as amended)

30. A rticle 46 provides, inter alia , that a party aggrieved by a criminal offence may attach a third ‑ party claim for damages to the criminal proceedings and request that the court convicting the person charged with a criminal offence order the latter to pay compensation for the damage caused to the aggrieved party by the offence. The aggrieved party further has the right to adduce evidence and to comment on it, to inspect the court file, to take part in the hearing, and to make submissions. Furthermore, Article 271 allows the aggrieved party to ask questions after the evidence taking and Article 272 § 1 stipulates that an aggrieved party (or his or her representative) is authorised to ask questions within the scope of his or her claim for damages after the questioning is concluded by the prosecutor.

31. If a court convicts a person indicted for an offence ( obžalovaný ) by which damage was caused, it generally orders the defendant to pay the aggrieved party damages (Article 287), unless the evidence taken is not sufficient for making such a ruling, in which case the court refers the aggrieved party to make the claim before the civil courts (Article 288).

32 . Under Article 172 § 2 of the Code of Criminal Procedure a simplified version of a judgment without reasoning may be produced provided that the prosecutor as well as the accused have waived their right to appeal after the pronouncement of the judgment, or that they have done so within three days of the judgment pronouncement.

33. Article 307 stipulates the persons entitled to appeal against the judgment. In particular, it sets forth such rights to the prosecutor, the accused and the aggrieved party only in so far as the appeal concerns rulings on compensation for damage.

C . Relevant international material

34. The UN Committee on the Elimination of Racial Discrimination adopted the concluding observations in respect of Slovakia in 2013 (CERD/C/SVK/CO/9-10). In paragraph 6 it dealt with the concern and recommendation regarding the racially motivated violence and crimes and stated as follows:

“The Committee recommends that the State party take effective measures to prosecute hate crimes in an effective manner so as to discourage racist and extremist organizations. In line with its general recommendation No. 15 (1993) on organized violence based on ethnic origin, the Committee urges the State party to exercise due vigilance and readiness in proceeding against such organizations at the earliest moment and to penalize and prosecute the financing and participation in their activities. The Committee urges the State party to address any loophole in its legislation by amending it so as to forbid and prevent activities of extremist organizations, by disbanding and declaring them illegal as necessary. The Committee reiterates its request that the State party provide updated statistical data on the number and nature of hate crimes, convictions and sentences imposed on perpetrators, disaggregated by age, gender and national or ethnic origin of victims and compensation awarded, where applicable.”

35. On 19 June 2014, the European Commission against Racism and Intolerance (ECRI) adopted a Report on Slovakia (CRI(2014)37)). It mentioned among others the case of the Hurbanovo shooting and its relevant paragraph 68 reads as follows:

“NGOs reported nine violent criminal offences against Roma between 2009 and 2012.47 In other cases, Roma settlements were the target of vandalism that endangered the lives of the inhabitants. The worst incident so far, which received extensive biased media coverage justifying the killing, took place in June 2012 when three Roma were killed and two wounded by an off-duty municipal police officer in Hurbanovo .”

36. ECRI in its Report further reiterated its recommendation that:

“ the Slovak authorities ensure effective investigations into allegations of racial discrimination or misconduct by the police and ensure as necessary that the perpetrators of these types of acts are adequately punished .”

COMPLAINTS

37. The applicants complain under Article 2 in conjunction with Article 14 of the Convention about the failure of the Slovakian authorities to consider properly the alleged racial overtones of the crime committed against them. This made it impossible to establish the racial element of the crime and to punish Mr. J. accordingly.

Under the same provisions, they further challenge the lack of reasoning of the sentencing judgment, which rendered it impossible to demonstrate any accountability for the racist motive behind the crime, and undermined public confidence in an objective and transparent justice system.

38. In addition, they complain under Article 2 in conjunction with Article 13 of the Convention about their inability to cross-examine or otherwise challenge the experts ’ conclusions as to Mr J. ’ s mental state, which prevented them from actively participating in the proceedings.

QUESTIONS TO THE PARTIES

1. Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, §§ 104-105, ECHR 2000-VII), was the investigation and prosecution by the domestic authorities in the present case in breach of Article 2 taken alone and in conjunction with Article 14 of the Convention?

In particular, did the respondent State comply with its positive obligation to investigate properly the alleged racist motive for the crime and try it adequately in accordance with the Court ’ s case-law (see for example Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §§ 113 and 160 ‑ 161, ECHR 2005 ‑ VII).

Also, did the trial court comply with its duty to explore all practical means of discovering the truth and to deliver a fully reasoned, impartial and objective judgment, without omitting suspicious facts that may be indicative of racially induced violence (see, mutatis mutandis , Balázs v. Hungary , no. 15529/12 , § 52, 20 October 2015 )?

2. Did the applicants have at their disposal a right to participate effectively in the criminal proceedings, as guaranteed under Article 2 in conjunction with Article 13 of the Convention?

In particular, did they have the opportunity to cross-examine or otherwise challenge the experts ’ conclusions as to Mr J. ’ s mental state (see mutatis mutandis, Dimitrova and Others v. Bulgaria , no. 44862/04 , § 87, 27 January 2011 )?