CONCURRING OPINION OF JUDGES EICKE AND VEHABOVIĆ

1. The offence at issue in the present case was a most horrific homophobic murder committed – it appears in an almost casual fashion – by a group of secondary school students who (judgment, § 6) “gathered often in a park in Sofia [and, in] the course of their gatherings ... would single out homosexuals known to be frequenting the park and assault them ..., calling their actions ‘kicking’ or a ‘clean-up’”. The events on 30 September 2008 were the consequences of just another one of these frequent “gatherings” and again (judgment, § 7) “decided to find a man who looked like a homosexual and to assault him”. Nevertheless, despite having clearly established the homophobic nature of the murder, the domestic Supreme Court ultimately sentenced the perpetrators to a sentence (well) below the minimum sentence prescribed by the Criminal Code.

2. In light of the evidence before the Court, we wholly agree with our colleagues that there was here a violation of Article 14 taken together with Article 2 of the Convention on the basis that (judgment, § 74) “the State’s response to the attack against the applicant’s son did not in sufficient measure discharge its duty to ensure that deadly attacks motivated by hostility towards victims’ actual or presumed sexual orientation do not remain without an appropriate response”.

3. Where we differ from our colleagues is when they conclude (judgment, § 73) that the violation in the present case was “chiefly” due to the fact that Bulgarian criminal law had not properly equipped those courts to do so rather than to the manner in which they dealt with the case. While the deficiencies in Bulgarian criminal law certainly provide a valid basis for a finding of a violation, the failings in the present case, in our view, go much further. After all, as we see it, the domestic courts failed even to use the “tools” at their disposal to reflect appropriately in the sentences actually imposed the homophobic nature of the murder of the applicant’s son.

4. Our disagreement with our colleagues finds its origins in their conclusion in paragraph 68 of the judgment that “it cannot be said that those sentences were manifestly disproportionate to the seriousness of the attackers’ act, as that notion is understood in the Court’s case-law”. That conclusion is expressed to be based on an application of the Court’s established case-law to the effect that:

“... it is not the task of the Court to ascertain whether the domestic courts correctly applied domestic criminal law; what is at issue in the present proceedings is not individual criminal-law liability, but the State’s responsibility under the Convention. There is also no absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence. The Court must grant substantial deference to the national courts in the choice of appropriate measures, while also maintaining a certain power of review and the power to intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed” ( Smiljanić v. Croatia , no. 35983/14, § 97, 25 March 2021, see also Sabalić v. Croatia , no. 50231/13, § 98 (iii), 14 January 2021).”

5. Again, we do not wish to gainsay the validity of this approach in principle. On the contrary, we agree with it and would certainly have come to the same conclusion as our colleagues had the Supreme Court imposed a sentence within the statutory range of available sentences.

6. As indicated above, the factor which leads us to conclude that, in fact, the sentences in the present case were “manifestly disproportionate” to the seriousness of the attackers’ act so as to justify a (separate or alternative) finding of a violation of Article 14 taken together with Article 2 of the Convention lies in the Supreme Court’s (significant) departure from the minimum sentence required by law.

7. After all, the Court in its judgment in Sabalić (cited above, § 111) stressed the need for the domestic authorities to demonstrate the State’s Convention commitment to ensuring that homophobic ill-treatment does not remain ignored by the relevant authorities and to providing effective protection against acts of ill-treatment motivated by the applicant’s sexual orientation, showing that such acts could in no way be tolerated, rather than fostering a sense of impunity for the acts of violent hate crime (compare also Milanović v. Serbia , no. 44614/07, § 100, 14 December 2010; and also Kopylov v. Russia , no. 3933/04, § 141, 29 July 2010; Darraj v. France , no. 34588/07, §§ 48-49, 4 November 2010; Zontul v. Greece , no. 12294/07, §§ 106-109, 17 January 2012; and Pulfer v. Albania , no. 31959/13, § 88 in fine , 20 November 2018).

8. Applying this approach in the context of the present case where, as the judgment makes clear (§§ 38 and 42), domestic law provided for:

(a) a duty (“must”) under Article 54 § 1 of the Criminal Code to “fix the sentence within the statutory range prescribed for the respective offence by taking into account the general rules of the Code, as well as (a) the seriousness of the offence and the dangerousness of the offender, and (b) the motives for the offence and the remaining mitigating and aggravating factors”; and

(b) at best a discretion (“may”) “[i]f faced with exceptional or numerous mitigating factors, when even a sentence fixed at the statutory minimum would be unduly harsh, the court may, inter alia , fix the sentence below that minimum (Article 55 § 1 (1) [of the Criminal Code])”;

leaves us with no doubt that the sentence imposed by the Supreme Court in the present case amounted to a separate/alternative violation of Article 14 taken together with Article 2 of the Convention.

9. None of the mitigating factors identified by the Supreme Court, read in light of the above-mentioned Convention commitment to ensure that homophobic ill-treatment does not remain ignored by the relevant authorities and to provide effective protection against such acts, are even remotely capable of justifying a reduction of the sentence, such as that in relation to the first attacker, by a third of the minimum statutory sentence. This is most clearly underlined by the fact, as recorded at paragraph 27 of the judgment, that the attacker’s “clean criminal record” was one of the mitigating factors identified without any reference to the fact that it had been established that this murder occurred in the context and as a result of an established routine by which the attackers and their friends appeared to have routinely gathered in the same park, known to be frequented by homosexuals, and, for want of a better word, “hunted” people who “looked like a homosexual” and assaulted them, something the judgment notes they called “‘kicking’ or a ‘clean-up’”.

[1] Article 4, entitled “Racist and xenophobic motivation”, provides: “For offences other than those referred to in Articles 1 and 2, Member States shall take the necessary measures to ensure that racist and xenophobic motivation is considered an aggravating circumstance, or, alternatively that such motivation may be taken into consideration by the courts in the determination of the penalties.”