PARTLY CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I have reservations concerning the approach adopted by my colleagues in paragraph 110. The reasoning therein states as follows:

“The Court cannot therefore overlook the fact that M.M.’s sentence in the minor-offence proceedings was manifestly disproportionate to the gravity of the ill ‑ treatment suffered by the applicant (compare Identoba and Others , cited above, § 75).”

2. It is important to add that this statement is made in the context of the Court’s finding that it was not possible to provide an adequate response in the instant case by way of minor-offence proceedings in general (see paragraph 111 of the judgment).

In declaring the sentence manifestly disproportionate, the Court implicitly establishes – whether or not it so intended – the following elements: (i) M.M. committed an act which may be characterised as a criminal offence; (ii) M.M. is guilty of this offence; and (iii) a much more severe punishment should have been imposed upon him by the domestic courts.

3. This approach raises several objections. Firstly, the Court’s judgment directly affects M.M.’s fundamental rights, whereas this person has never been heard in the proceedings before the Court (on this issue, see my separate opinions appended to the judgments in the following cases: Bochan v. Ukraine (no. 2) [GC], no. 22251/08, ECHR 2015; Kosmas and Others v. Greece , no. 20086/13, 29 June 2017; A and B v. Croatia , no. 7144/15, 20 June 2019; and Liamberi and Others v. Greece , no. 18312/12, 8 October 2020).

Secondly, in the domestic proceedings M.M.’s presumption of innocence was rebutted only in respect of a minor offence, but not in respect of a criminal offence. In criminal proceedings, M.M. has the right to be presumed innocent, as guaranteed by Article 6 § 2. This provision shields the suspect and the accused from, in particular, prejudicial statements, issued by public authorities, which may impact upon the course of criminal proceedings. The statement quoted above conflicts with the presumption of innocence and prejudges the issue of M.M.’s criminal responsibility.

Thirdly, the Court rightly highlights that some essential factual elements have not been correctly investigated in the instant case and, in particular, that the authorities did “not in any manner address the hate-crime element to the physical attack against the applicant” (see paragraph 108). If essential factual elements in a criminal case have not been investigated at all, it is difficult to issue categorical pronouncements concerning the severity of the punishment to be imposed.

Fourthly, the proportionality of punishment is determined by several factors, including, inter alia , the gravity (social dangerousness) of the offence, the level of individual guilt, the risk of reoffending, resocialisation purposes, criminal policy considerations etc. All these factors must be very carefully assessed in the individual circumstances of a specific case.

Fifthly, the reasoning rightly states in paragraph 108 that “it goes without saying that it is not for the Court to address such issues of domestic law concerning individual responsibility, that being a matter for assessment by the national courts, or to deliver guilty or not guilty verdicts in that regard”. The judgment expresses further, in paragraph 110 in fine, the view that the finding with regard to the manifestly disproportionate nature of the punishment “does not have any bearing on M.M.’s individual criminal responsibility under the domestic criminal law”. In my view, for the reasons explained above, it does not appear possible to characterise a punishment imposed in a specific case as manifestly disproportionate without simultaneously making assumptions as to the suspect’s individual criminal responsibility. There is a contradiction between, on the one hand, the first sentence of paragraph 110 and, on the other, the above-quoted views, expressed in paragraph 108 and in the last sentence of paragraph 110.