The European Court of Human Rights has recently ruled that a state's failure to stop disability harassment amounted to inhuman treatment. Maria Roche analyses the ruling.
The European Court of Human Rights has declared in Đorđević v Croatia – 41526/10 – HEJUD  ECHR 1640 that the failure of the Croatian State to prevent the persistent harassment of a severely disabled young man was a breach of his Article 3 ECHR right not to be subjected to torture, inhuman or degrading treatment or punishment.
It also amounted to a breach of his mother’s Article 8 ECHR right to respect for her family and private life. The applicants had no effective remedy in the domestic courts in breach of Article 13 ECHR.
This is an important judgment on the protection from harassment that the State must ensure for disabled people and their families.
The first applicant, Dalibor Đorđević is a man in his mid-30s who lacks legal capacity owing to his severe physical and mental disabilities and is cared for by the second applicant, his mother Radmila Đorđević. Dalibor had developed a variety of physical impairments as a result of a childhood illness, including epilepsy, very poor eyesight, severe foot deformation and a painful spine. He was dependent on his mother for basic daily care.
Dalibor and Radmila lived in a ground-floor flat in Zagreb, close to a primary school. Between July 2008 and February 2011 they were subjected to persistent harassment by pupils from the school. The harassment was motivated by Dalibor’s disability and both applicants’ Serbian origin and was aimed primarily at Dalibor.
Most of the incidents involved low-level insidious psychological harassment. A group of children would come daily to the park in front of the applicants’ flat, shout obscenities and spit at Dalibor and write insulting messages on the pavement. They had thrown water over Dalibor. The applicants’ balcony was covered in snow, chocolate, and milk, and the flower beds were torn up; their door was urinated on; a stone was thrown at their window; and their living room window completely covered in saliva.
Children would make lewd comments; whilst other comments were made using the Serbian dialect alluding to the applicants’ Serbian origins. The children had admitted to their headmaster that they had done a number of “brutal acts” including making derogatory remarks, swearing and acting provocatively, burning Dalibor's hands and taking his ball.
By 2009, the incidents had escalated to physical violence: on 4 April 2009 Dalibor was burned on his hands with cigarettes; on 14 September 2009 he was pushed and insulted; during that winter he was hit with snowballs “without mercy”; on 11 April 2010 he was hit on the nose with a ball; and on 13 May 2010 Dalibor was pushed against an iron fence, causing him to fall and hit his head.
The harassment had a debilitating effect on Dalibor: he was reported to be deeply upset, to be suffering from constant anxiety and a feeling of being persecuted. Psychotherapy was recommended. After one incident, he was withdrawn and uncommunicative for three days. His doctor described him as a peaceful and benign person who could not and did not know how to defend himself from the abusers. As a result of the stress arising from the harassment, Dalibor often bit his lips and fists, had a twitch in his left eye and suffered from psoriasis. A medical report dated March 2011 stated that it was necessary to move Dalibor to a calm and friendly environment.
Radmila had reported the harassment on numerous occasions to the authorities, including the social services, the police, the Ombudswoman for Persons with Disabilities and the school. The authorities did respond to reported incidents but only inadequately. The police were frequently summoned to the flat but arrived late or simply told the children to go away. Nevertheless, certain named children were interviewed; the police offered to patrol the street more frequently; whilst the headmaster wrote to the parents of children at the school to ask them to speak to their children about their behaviour towards Dalibor.
The children were, however, below the age of criminal responsibility so no criminal prosecution could be brought against them. Consequently in May 2010, the Zagreb Municipality State Attorney’s Office stated it had no jurisdiction; the Ombudsman for Children also considered that she had no jurisdiction; whilst the headmaster informed the applicants’ lawyer that the school authorities had taken all measures that they considered appropriate. There was no sustained or integrated approach by the authorities to the systematic and incessant harassment.
Harassment met threshold for Article 3 and Article 8 protection
The Croatian government had argued that the requisite level of severity for Article 3 had not been reached since the harassment complained of had mostly been verbal whilst the injuries that Dalibor had sustained on 4 April 2009 had been of a mild nature. Croatia also argued, rather extraordinarily, that since Dalibor had continued to want to walk around outside the apartment, he could not be traumatised by the events in issue.
Croatia also argued that Dalibor had not exhausted all available domestic remedies since, under Croatian domestic law, the applicants could have brought a civil action against the children and parents of the children concerned, or against the school or other authorities; alternatively they could have instituted a private prosecution for minor offences against the children’s parents. A further remedy that was said to be available was an “action against an unlawful act” against the relevant authorities, which the Croatian courts would have been obliged to adjudicate urgently. Criminal investigations were said to still be pending against two of the children who were over the age of 14.
The Court rejected these arguments. The Court treated the repeated episodes of violent behaviour towards the first applicant by a group of children over a long period of time as a continuing situation of ongoing harassment and noted that both the incidents of harassment and their effect on Dalibor’s health were well-documented. Consequently,the State had a positive obligation to protect Dalibor from the violent behaviour of the children involved under both Article 3 and 8, although it analysed Dalibor’s complaint in respect of Article 3 only.
The Court affirmed that ill-treatment must attain a minimum level of severity and this assessment depends on all the circumstances of the case, such as the nature and sex, age and state of health of the victim. Treatment is ‘inhuman’ when it is applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering; whilst treatment is ‘degrading’ when it is such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them.
The Court considered that the harassment of Dalibor, which on one occasion caused him physical injuries, combined with feelings of fear and helplessness, was sufficiently serious to invoke the protection of Article 3.
Radmila had not been exposed to any form of violence. Nevertheless, incidents caused disruption to her daily life, and had an adverse effect on her private and family life, and thus Article 8 was applicable.
The applicants had not failed to exhaust their domestic remedies. The existence of remedies that are effective must be sufficiently certain not only in theory but also in practice, so they must be accessible and capable of providing redress. The issue was not one concerning the individual responsibility of the parents for the children involved but the lack of an adequate State response to acts of harassment by children who could not be criminally prosecuted; whilst individual criminal responsibility was not at issue. The State had failed to show that it had taken effective steps to prosecute those children who were old enough to be prosecuted.
Fundamentally, the State had not indicated which State body could be held to be responsible for the failure to take adequate measures and the suggested public law remedy could only be brought against an individual public official who had a duty to act with a basis in law – and it would be difficult to name such an individual official. The situation called for an immediate reaction by the State authorities, and Croatia had not shown that any of the remedies available would have led to such a response.
The complaint that the applicants had been discriminated against on the grounds of the Serbian ethnicity and/or the first applicant’s disability was, however, not admissible as the applicants had not exhausted domestic remedies.
Breach of Article 3 and 8
The ECtHR reiterated that Article 3 requires States to take measures designed to ensure that individuals are not subjected to torture or inhuman or degrading treatment and these measures should provide effective protection of children and other vulnerable persons, including taking reasonable steps to prevent ill-treatment. The ECtHR was mindful that this should not impose an impossible or disproportionate burden on the authorities so not every claimed risk of ill-treatment will entail a Convention requirement to take operational measures.
This case was to be distinguished from the obligation of a state to conduct a thorough, effective and independent investigation into criminal acts since few of the acts complained of amounted to a criminal offence as most of the children were below the age of criminal liability. The incidents of harassment were nevertheless incompatible with Article 3 and the state was under an obligation, outside the sphere of criminal law, to respond to a situation of violence and harassment.
In the circumstances, competent state agencies were fully aware of the ongoing harassment of Dalibor, but failed to take sufficient steps to ascertain the extent of the problem and to prevent further abuse taking place. The ECtHR found that: “No serious attempt was made to assess the true nature of the situation complained of, and to assess the lack of a systematic approach which resulted in the absence of adequate and comprehensive measures.”
The lack of any concrete action, the absence of the involvement of social services or any experts who could have worked with the children were noted, as was the fact that Dalibor had not been provided with counselling. The ECtHR noted that: ”Apart from responses to specific incidents, no relevant action of a general nature to combat the underlying problem has been taken by the competent authorities despite their knowledge that the first applicant had been systematically targeted and that future abuse was very likely to follow”.
Consequently, in breach of Article 3 the State had failed to take all reasonable measures to prevent abuse against Dalibor, notwithstanding the fact that the continuing risk of such abuse was real and foreseeable.
Similarly, Croatia had failed to take all adequate and relevant measures to protect the family and private life of Radmila in breach of Article 8.
As the applicants had no effective remedy that would have addressed their situation, there had also been a breach of the Article 13 right to an effective remedy before a national authority.
Dalibor and Radmila were jointly awarded 11,500 EUR plus 4,706 EUR in respect of costs.
This decision is an important and welcome protection for disabled people from hate crime.
In recent years, the tragic effects of disability hate crime and repeated failures by the relevant authorities to protect disabled people have become all too evident. Evidence in the inquest into the deaths of Fiona Pilkington and Francecca Hardwick indicated that both errors and inaction of the police and other authorities in the face of years of abuse from youths had contributed to driving a vulnerable single mother to kill herself and her severely disabled daughter.
The facts of the application to the ECtHR of X. Y and Z v UK reveal the potential for a dangerous escalation from harassment and bullying to severe physical and sexual violence when the authorities fail to act. The applicants in that case, represented by Leigh Day & Co solicitors and members of 1 Crown Office Row, settled with the UK government before a full hearing. It appears likely, in the light of Dordevic, that the applicants in X, Y and Z v UK would have succeeded.
United Response, a charity that supports people with learning disabilities, mental health needs, and physical disabilities, gives this example of the practical effect of disability hate crime on the lives of disabled people: “We run a drop in centre in London where people with learning disabilities meet to socialise and learn new skills. This centre is open until 5 and is normally teeming with activity, but at 3pm there is a sudden exodus. The reason: everyone wants to make their way home before children get out of school and taunt them on public transport.”
Persistent harassment can be difficult to police and the necessary protection will often require coordinated action from a variety of government agencies. The Court specifically commented on the failure of the various Croatian State bodies to adopt a coherent and strategic approach. Disabled people often fall between the cracks between agencies. An inquest into the death of David Askew found that he had been harassed because of his learning disabilities for over 30 years and had been unlawfully killed after an altercation with youths contributed to his death. The Coroner commented that in dealing with the anti-social behaviour towards Mr Askew the police, the local authority and various housing associations had shown a “staggering degree of inertia and complacency”.
Keir Starmer QC, Director of Public Prosecutions, last year affirmed the Crown Prosecution Service’s commitment to prosecuting disability hate crimes, stating: “Disability hate crime strikes at all disabled people by undermining their sense of safety and security in the community. For this reason disability hate crime should be regarded as particularly serious. Such crimes are based on ignorance, prejudice, discrimination and hate and they have no place in an open and democratic society.”
Figures published by the Association of Chief Police Officers for 2011 report 1,788 recorded incidents of disability hate crime in England and Wales, an increase of more than 18% on the total for 2010. There were 523 convictions. The majority of disability hate crimes involve violence against the person. There is no specific offence of inciting hatred based on disability, in marked contrast to inciting hatred based on race, religion or sexual orientation. Sections 145 and 146 of the Criminal Justice Act 2003, however, place a duty on courts to increase the sentence for any offence shown to be motivated by hostility based upon (inter alia) the victim’s actual or presumed disability or for any offence where a defendant demonstrated hostility based upon the victim’s actual or presumed disability. It is widely believed that many incidents go unreported.
The issue of vulnerability as an aggravating factor for sentencing is a complex and challenging one. A disabled person should not be automatically and necessarily considered to be vulnerable. To assume ‘vulnerability” is an inherent and unchanging characteristic of disabled people is to discriminate against them, is disempowering and sails close to a flawed conceptualisation of disability as weakness.
Such an approach also invites the kind of (in my view, appalling) arguments that were run by the Croatian State that Dalibor had engaged in risky behaviour in light of his own vulnerability by going (or his mother had failed in caring for him by allowing him to go) outside on his own. The CPS Guidance on the distinction between hostility and vulnerability in disability hate crime states that: “A disabled person is not vulnerable/easy target per se. It is the particular situation in which they may find themselves and which is then exploited that makes them vulnerable to be targeted for some types of criminal offences.”
The focus should be on the situation, rather than the person and a fact-specific, nuanced approach is required.
This judgment is a useful tool for those advocating for better protection for disabled people. As the European Disability Forum argued in its intervention in this case, disability hate crime has to date not received enough attention from law-makers and law-enforcement authorities. A denial by any single agency or multiple agencies of responsibility, without an attempt to provide protection can now be argued to be a breach of the Human Rights Act 1998.
Let us hope that this judgment will provide a mechanism for disabled people to be able to invoke the necessary protection, but we also need to think about our attitudes towards disability. One hope for the London 2012 Paralympic Games was that it would change negative attitudes towards disabled people. The reported results of a survey commissioned by the Charities Aid Foundation before the Games showed that three quarters of those surveyed believed that people with disabilities often experience prejudice or discrimination in society, whilst 41% of people suggested that the UK Government could do more to help.
The Games were a fantastic demonstration of some of the many achievements of disabled people, but were also a reminder of the extant problems with rights, infrastructure and opportunities for disabled people globally.
In a recent article on the legacy of the Paralympic Games, Katharine Quarmby stated: “Therefore, my first wish for the legacy of the Paralympics is that we confront the historical roots of our attitudes towards disability. If we do not understand where our attitudes come from we will never be able to reform ourselves or indeed the perpetrators of hate crime, who take those attitudes to their logical end and attack disabled people.”