The Basic Criminal Court of Skopje, upon considering the indictment presented by the Basic Public Prosecution of Skopje, following the main, public, and oral trial held on July 31, 2023, has found the defendant, F.G. from Skopje, guilty of committing a hate crime involving violence against Bekim Asani, a human rights activist and president of the LGBTI UNITED Association, during a protest gathering in Skopje last year.
In the delivered and publicly announced verdict by Judge Daniela Dimovska, the court found the defendant guilty because, “on August 31, 2022, around 4:20 PM, on Bitpazarska Street, Skanderbeg Square in Skopje, the defendant committed a violent assault on the victim, Bekim Asani, motivated by hatred due to his sexual orientation and affiliation with the LGBT community. During this incident, the defendant caused physical injuries to the victim by kicking and punching him on the head and body, resulting in head trauma and bruising in the lumbar region. This act, which occurred while the victim was waiting with several others to commence a scheduled public gathering of citizens to express solidarity and support for an eleven-year-old girl from the Republic of Kosovo who had been subjected to violence, caused a sense of insecurity, threat, and fear in the public.”
With such actions, the defendant F.G. committed the criminal offense of violence under Article 386, paragraph 5, in connection with paragraph 3, in connection with paragraph 1 of the Criminal Code. In accordance with the aforementioned article and Articles 3, 4, 7, 29, 30, 31, 32, 33, 35, and 39 of the Criminal Code, as well as Articles 102, 105, and 114 of the Criminal Procedure Code, the court sentences the defendant, who is currently unavailable to law enforcement authorities, to a two-year prison term, as stated in the court’s verdict.
The court, in its explanation, finds it necessary to emphasize the significance of the concept of hate crimes, as highlighted in a plethora of international documents and acts, suitably transposed into domestic legislation. In criminal legislation, the concept of hate crimes has gained significant traction, influenced, on one hand, by the positions and activities of the OSCE (Organization for Security and Cooperation in Europe). This began with the Ministerial Council of OSCE member states in Maastricht in 2003, where important decisions were adopted regarding the prevention and punishment of acts motivated by intolerance towards certain societal groups (‘hate crimes’). ODHIR (Office for Democratic Institutions and Human Rights) was entrusted with the mandate to encourage and coordinate the activities of member states for their implementation. For the first time, the concept of hate crimes in our legislation was incorporated with the adoption of amendments to the Criminal Code in 2009, which stipulated that when determining the sentence, the court should take into account whether the act was committed due to some affiliation of the victim. This made committing an act based on a discriminatory basis a general aggravating circumstance in the Criminal Code.
“Hate crimes and hate incidents leave victims in fear of future attacks and additional violence. Such fear stems from the rejection of the victim’s identity, which is implicit in hate crimes. Additionally, hate crimes send a message that the victim is not accepted in the society in which they live. As a result, those who are targeted may experience extreme isolation within their community and heightened, longer-lasting fear compared to victims of other criminal offenses,” as highlighted by the court.
When hate crimes are not thoroughly investigated and prosecuted, it sends a message to the perpetrators that they are free to continue their activities, thereby encouraging them to commit similar acts. The impunity of those who commit hate crimes contributes to an increase in the level of violence. In the absence of protection from hate-based violence, minority communities (such as the LGBTI community, for instance) lose trust in the law enforcement system and state structures, leaving them further marginalized. In the worst case, hate crimes can trigger retaliatory attacks by victimized groups, creating a cycle of violence.
The definition for a special, stricter criminal-legal treatment of these offenses is also embedded in conventions for the protection of human freedoms and rights (ranging from conventions on genocide, crimes against peace and war crimes, to conventions on preventing racial and other forms of discrimination and the spread of hatred and xenophobia). Several acts (directives and framework decisions) of the European Union align with the same principles. The Republic of North Macedonia, as a signatory to these conventions and as a candidate country for EU membership, is obligated to incorporate the concept of hate crimes into its criminal legislation and ensure effective detection and prosecution of such offenses.
The court references the case of ‘Identoba and Others v. Georgia,’ in which the European Court of Human Rights (ECtHR) noted that a pecuniary penalty for a misdemeanor does not constitute an adequate penalty for violations of Articles 3 and 11 in conjunction with Article 14. Furthermore, there were serious allegations that the motive was prejudice against individuals with different sexual orientations. The existence of such indicators requires the investigation to uncover the presence of bias motives, which would prove the commission of a hate crime. These criminal offenses are typically punished more severely than ordinary criminal offenses. Hence, the obligation arising from the case law of the ECtHR is to investigate any racist or discriminatory motive. The goal is clear: to provide legal and institutional protection for minority communities in pluralistic societies, thereby promoting greater social cohesion and safeguarding public order and peace.
Taking into account all the circumstances, the criminal court found the defendant guilty and sentenced them to two years in prison, expecting that this imposed sentence would serve the general and specific purposes of punishment under Article 32 of the Criminal Code. This includes both special and general prevention, aiming to have a rehabilitative influence on the defendant, discouraging them from committing such or other criminal offenses in the future.
