Disability hate crimes and the State’s responsibility to protect the vulnerable

Ðordević v Croatia [2012] ECHR 1640 (24 July 2012) Summary

The European Court of Human Rights considered an application against the Republic of Croatia lodged by the first applicant, a physically and mentally disabled Croatian national, and the second applicant, his mother and full-time carer. The Court found that there had been a violation of articles 3, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of both the first and second applicants through the Croatian authorities’ failure to take all reasonable measures to prevent the ongoing abuse of the first applicant by a group of schoolchildren.


The first applicant lived together with his mother in Zagreb. Beginning in July 2008, he had been harassed repeatedly by a group of schoolchildren from a nearby primary school.

The children shouted obscenities at the first applicant and wrote insulting messages on the pavement outside his home. Some of these alluded to his Serbian background. On one occasion he was pushed into an iron fence and spent time in hospital. At other times the children threw objects at the applicants’ flat and vandalized the balcony.

The second applicant repeatedly attempted to bring the harassment of her son to the attention of police. On each occasion that the police encountered the children they simply told them to go home. None of the children’s identities were ever verified and no questioning of them was ever undertaken. The second applicant reported the schoolchildren to social services, to the Ombudswoman for Persons with Disabilities and to the school authorities. No concrete action to stop the children’s behaviour was ever taken. This was generally attributed to the children’s status as minors and thus their parents’ responsibility. The harassment continued, relatively unabated, for about four years.

Having exhausted all domestic remedies, the second applicant brought an application against the Republic of Croatia before the European Court of Human Rights. She argued that by failing to prevent the harassment and abuse of both her son and herself, the Croatian authorities had violated their rights under articles 3 (prohibition of inhuman and degrading treatment), 8 (right to private life), 13 (right to an effective remedy) and 14 (prohibition of discrimination) of the Convention. The claim under article 14 was dismissed outright.


Much of the case turned upon the applicability of articles 3 and 8. Article 3 provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. The Court noted that for conduct to fall within the scope of this Article it must attain a “minimum level of severity’. “Inhuman” treatment included that which “caused either actual bodily injury or intense physical and mental suffering”. “Degrading” treatment aroused in its victims “feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance”. The Court held that the harassment of the first applicant had been sufficiently serious to enliven Article 3.

Article 8 provides that “everyone has the right to respect for his private life”. There “shall be no interference by a public authority with the exercise of this right” other than where this is necessary “in a democratic society”. For the Court, this imparts a positive obligation upon the State. It held that the level of disruption caused to the second applicant’s private life as a result of the ongoing harassment of her son engaged article 8.

The Court then considered the merits of the applicants’ claims under these articles. Article 3 was to be cast “in absolute terms” and it required the State to take active measures to protect the individuals within its jurisdiction in a way that nonetheless did not “impose an impossible or disproportionate burden” upon the authorities. The Court considered that the incidents of harassment, viewed as a whole in light of their ongoing nature, were ‘incompatible’ with the requirements of article 3. Given that the authorities were at all times aware of the children’s behaviour, had they taken sufficient steps to prevent further harassment of the first applicant? The Court held that they had not. Although the police had attended on several occasions, this was not followed by any concrete action. No policy decisions were adopted, no monitoring mechanisms were put in place and there was no intervention by social services and no offer of counselling provided to the first applicant. Overall, there was “no relevant action of a general nature to combat the underlying problem”. Accordingly, the Croatian authorities had failed in their duties to both the first applicant in respect of article 3 and the second applicant in respect of article 8.

The Court discussed the rising trend of what it termed “disability hate crimes”. This was raised at trial by the European Disability Forum as a third party. The Court noted the submissions of that body that “the response of the authorities to that phenomenon should shift from reactive to proactive and be aimed at protecting persons with disabilities from all acts of violence”.

Relevance to the Victorian Charter

Section 10 of the Victorian Charter of Human Rights and Responsibilities mirrors article 3 of the Convention. Other clauses of the Charter might have been equally applicable to the applicants’ case, for example, section 12, given that the first applicant’s freedom of movement was restricted due to the harassment he encountered each time he ventured from his flat. So much was admitted by the school authorities, who suggested that the harassment would cease if the first applicant would simply remain at home.

Section 13 provides that a person has the right not to have his or her privacy unlawfully or arbitrarily interfered with. Whether the scope of the Charter extends so far as to “secure respect for private life even in the sphere of the relations of individuals themselves”, as does the Convention  is questionable. However, given that the children’s conduct constituted a civil offence (and potentially a criminal one, notwithstanding their age) a similar result may well be observed locally as section 38(1) makes it unlawful for a public authority to act in a manner incompatible with these rights.

The decision is available online at: http://www.bailii.org/eu/cases/ECHR/2012/1640.html

Ingrid Weinberg, Law Graduate, King & Wood Mallesons Human Rights Law Group.