Hate crime — Kristina Todorovic
The Lawyers’ Committee for Human Rights (YUCOM) has announced that the first effective verdict for the criminal act of hate crimes was passed. This was a case regarding domestic violence against a LGBT person in which the motive of the crime was taken as an aggravating factor. In the procedure led by our lawyer Kristina Todorovic, domestic violence was motivated by the fact that the victim injured was a member of the LGBT community. For the very first time, the First Basic Court in Belgrade took into consideration the motive of the act when determining the sentence.
Although there is a provision condemning hate crime motivated by affiliation to some group since December 2012, this has not been taken into account in a single judgment before. According to the research of LGBT organizations, 40 percent of the members of the LGBT community experience cases of violence from family members, which makes us believe that this verdict is very important. This was a reason to talk with Kristina Todorovic, who led this case.
We have been waiting for six years for a provision condemning hate crime to be applied. How do you explain such a long period of time?
The introduction of new provisions into legislation is a process that takes several years even in developed countries, and far more methodic legal systems have an adaptation period that lasts just as long. Hence, it is not surprising that even in Serbia, this aggravating factor was awaited. Working on practical issues relating to hate crime, the question arises which authority should raise this provision. It was unclear whether this obligation was within the jurisdiction of the police, the prosecutor’s office or the court.
After a series of meetings with representatives of judicial institutions and civil society organizations, along with the exchange of experiences with countries from Europe and the region, the conclusion is that the motive of hatred must be included in the indictment, so that the proceedings can be fairly conducted in order to prevent a violation of the defense right of the defendant. The issue was discussed during many years within the inter sectoral working group for the fight against hate crimes in the Republic of Serbia, where YUCOM took part together with representatives of the Prosecutor’s Office, the Police, the OSCE Academy of Justice and several civil society organizations..
What has changed and why in this case this article is applied?
In the following case, the motive of hatred was recognized since the beginning, and emphasize was put on it since the very beginning of the proceedings. As soon as the criminal complaint was filed in, it has been pointed out to the prosecution that the motive for perpetuating violence was the fact that the victim “confessed” his sexual orientation. The defendant also insisted on that point during the proceedings, believing that it was an excuse for conducting violence against his son and that the institutions would take the same attitude, or justify his legitimate struggle against his son’s “illness”. He lived in a firm belief that his homosexuality could be corrected by treatment, for which he insisted for years, and his son’s refusal to cure treatment led to the escalation of violence.
What does article 54(a) provide?
Article 54(a) prescribes that the circumstances under which a certain criminal offence is committed because of a certain personal character will be taken into account by the court as an aggravating circumstance when imposing a sentence. In our Criminal Code, personal characteristics are listed, and they are: adherence to a particular race or religion, national or ethnic affiliation, sex, sexual orientation or gender identity of a person. Therefore, if during the procedure it is determined that an act was done out of hatred due to one of the stated personal characteristics, the court will appreciate it as an aggravating circumstance.
Extremists would say that minorities are protected as much as “white bears”, why are they all protected except for Serbs?
Of course, there may be a malicious interpretation of this article, such attitudes are common in the public and especially when it concerns such a sensitive issue. However, the circumstances in which we live show that there are vulnerable groups whose legal system must provide more protection. Stricter punishment of hate crime perpetrators will raise awareness among people about the harmfulness of this behavior and consequently contribute to general prevention. This article sanctioned hatred that is harmful not only to the individual who is the victim, not even to a particular vulnerable group, but that is harmful to society as a whole.
What can you tell us about the case that you led?
It has already been stated that it is a criminal act of Domestic Violence, which was committed due to the son’s homosexual orientation. Unfortunately, the violence had already been lasting for too long before the victim finally contacted YUCOM. Constant psychological violence, threats and blackmails were accompanied by frequent acts of physical violence, especially in situations that would be considered as an additional trigger for the defendant — for example, when the injured was bringing a boyfriend, even a friend, to the apartment. Since the criminal proceedings had already been lasting for a long time, YUCOM also initiated civil proceedings to protect against domestic violence. During the civil proceedings, an expert report was produced and t found that the profile of the victim and his mother, who protected him all the time, corresponded to the profile of victims of domestic violence, while the profile of the defendant corresponded to the authentic profile of the perpetrator. This made it much easier to make a decision, along with other evidences that were produced in the lawsuit. All the collected proof was successively forwarded to the prosecution, and so as for the judgment from the civil proceedings that we received in the meantime, which clearly established the violence and, among other things, that the defendant has been evicted from the apartment.
How do you explain that, in addition to the aggravating circumstance of a criminal hate crime, the Court ruled for a suspended sentence? Are your client and you satisfied at all with such a punishment?
When imposing a sentence, the court always takes into account all the circumstances of the case, both aggravating and mitigating, which may influence the extent of the punishment,. In the following case, although it was found that there was an aggravating circumstance – that the work was done out of hatred – there were also mitigating circumstances, namely that the defendant had not been convicted before, that he had already been evicted from the family apartment in a civil case, as well as his ill health condition, which was further exacerbated during the criminal proceedings.
According to the research, the LGBT community is one of the most discriminated groups and suffers from constant violence, however, this is not reflected in the number of complaints submitted to the Commissioner for the Protection of Equality or the lawsuits of the court. How do you explain that?
A chronic problem in the application of human rights protection mechanisms is the fact that there is a far greater number of rights violations than situations where there is an adequate response. This is caused by mistrust in institutions, fear of social condemnation, and lack of adequate legal and psychological help. Involvement in court proceedings requires not only classic representation before state authorities, but implies also working with the victim to encourage and empower her to pass through this mechanism.
When should LGBT people report to YUCOM and ask for your help?
In situations where they suspect that there has been a violation of a particular right, they may apply at least for primary legal assistance, which involves giving advice and opinion on the possibility of conducting a procedure. In the event that judicial protection is necessary, it is very important that there is an adequate psychological help and support, because justice is not only slow, the way to it is very exhausting. It cannot be said that we are satisfied with the suspended sentence, but we believe that even such a warning will be sufficient for the defendant not to repeat the work. Otherwise, the court will revoke the suspended sentence, activating the prison sentence. I think it is important to see a wider picture, that is, the application of Article 54(a) for the first time which will open the doors to institutions to continue to do so in similar situations in the future, and this is precisely the significance of this decision.