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FIRST
SECTION
CASE OF BRANKO TOMAŠIĆ AND OTHERS v. CROATIA
(Application
no. 46598/06)
JUDGMENT
STRASBOURG
15 January 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Branko Tomašic and Others v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 11 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 46598/06) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by five Croatian nationals, Mr Branko Tomašić,
Mrs Ðurđa Tomašić, Mr Marko Tomašić,
Mr Tomislav Tomašić and Miss Ana Tomašić
(“the applicants”), on 30 October 2006.
- The
applicants were represented by Mrs I. Bojić, a lawyer practising
in Zagreb. The Croatian Government (“the Government”)
were represented by their Agent, Mrs Š. StaZnik.
- On
7 May 2007 the Court decided to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1956, 1963, 1985, 1995 and 2001 respectively
and live in Čakovec. The first and second applicants are husband
and wife and the third to fifth applicants are their children.
- During
2004 M.T., the first and second applicants’ daughter and the
third to fifth applicants’ sister, entered into a relationship
with a certain M.M. They started living together with the applicants
in their home. On 1 March 2005 they had a child, V.T. Soon afterwards
M.M. had a series of disputes with the members of the household and
often expressed verbal threats against M.T., which resulted in him
moving out of the house in July 2005. On 4 January 2006 the Čakovec
Social Welfare Centre (Centar za socijalnu skrb Čakovec –
hereinafter “the Welfare Centre”) filed a report with the
Međimurje Police Department (Policijska uprava međimurska)
stating, inter alia, that on 2 January 2006 M.M. had come to
the Centre and claimed that he had a bomb and would “throw it
at his former wife [meaning M.T.] and child”.
- On 5 January 2006 M.T. lodged a criminal complaint with
the Čakovec State Attorney’s Office against M.M. She
alleged that on a number of occasions since July 2005 M.M. had come
to her parents’ house where she also lived with her daughter
and had threatened to kill her and their daughter with a bomb unless
she agreed to come back to him. He had also often made telephone
calls and sent SMS messages to her by mobile phone repeating the same
threats.
- On
3 February 2006 M.M. was detained following the instigation of the
criminal proceedings against him in the Čakovec Municipal Court
(Općinski sud u Čakovcu) on 27 January 2006. A
psychiatric opinion obtained during the proceedings stated that on 2
January 2006 M.M. had claimed before the employees of the Welfare
Centre that he had a bomb and that his threats had been meant
seriously. He had repeated the same claim on 19 January 2006 before
police officers from the Međimurje Police Department. The
relevant parts of the conclusions of the report read as follows:
“1. Defendant M.M. is a person suffering from a
profound personality disorder etiologically linked to innate
malfunctioning of the brain and the highly unfavourable pedagogical
circumstances of his childhood. Dg: mixed personality disorder ...
2. In the context of the said personality disorder the
defendant’s reaction to a problematic situation was an
inadequate and pathological defence mechanism with inflated ideas and
related activities. These inflated ideas do not amount to a mental
illness.
3. I have not found elements of either permanent or
temporary innate mental illness, diminished intellectual capacity or
epilepsy which might be linked to the criminal offences with which
the defendant is charged.
4. He is not addicted to alcohol, drugs or other
substances ...
5. In view of what has been said under 1, 2 and 3 and in
view of all the other information collected so far in connection with
the criminal offences, I consider that his ability to wilfully
control and understand the meaning and consequences of his act
tempore criminis was diminished, but that [he was not]
completely unaccountable.
6. There is a strong likelihood that he will repeat the
same or similar criminal offences. In order to prevent this, I
recommend that the court, apart from the other measures, order
compulsory psychiatric treatment with a predominantly
psychotherapeutic approach with the aim of developing an ability to
resolve difficult situations in life in a more constructive manner.”
- On
15 March 2006 the Municipal Court found M.M. guilty of threatening
M.T. on several occasions during the period between July and 30
December 2005 both in front of her family house and at the parking
lot near the city graveyard when M.T. had been alone. He had shouted
threats that he would kill her, himself and their child with a bomb;
at the Welfare Centre on 2 January 2006 he had said that his threats
had been meant seriously, that he actually had a bomb and that he
would kill himself and the child with the bomb on the child’s
first birthday on 1 March 2006. He was sentenced to five months’
imprisonment and a security measure of compulsory psychiatric
treatment was ordered during his imprisonment and afterwards as
necessary. In ordering the defendant’s compulsory psychiatric
treatment the court relied entirely on the findings of the
psychiatric report. The relevant part of the judgment read as
follows:
“... throughout the whole period in question the
defendant had been telling the victim that he would throw a bomb at
himself and their child as well as her [the victim] if she happened
to be around. These events came to a head on 30 December. The
defendant did not refrain from mentioning a bomb either in front of
the Welfare Centre’s employees or a policeman. Furthermore, he
said in front of the policemen that he would blow himself and the
child up with a bomb on the child’s first birthday. Therefore,
there is no doubt that both the victim and the witnesses understood
these threats as being meant seriously ... Thus, the victim’s
fears for her own as well as her child’s safety were justified
...
...
... all conditions for ordering a security measure [of
compulsory psychiatric treatment] have been fulfilled since the
defendant committed a crime while his capacity for understanding was
diminished and it is likely that he will repeat the same or similar
offence. It is necessary to order compulsory psychiatric treatment
during his prison term and after his release. The treatment shall
take a predominantly psychotherapeutic approach, as recommended by
the expert, in order to develop [the defendant’s] ability to
address difficult situations in life in a more constructive manner.”
- On
28 April 2006 the Čakovec County Court (Zupanijski sud u
Čakovcu) reduced the security measure to the duration of
M.M.’s prison sentence and upheld the remaining part of the
judgment. The relevant part of the judgment reads as follows:
“... there is no doubt that frequent murder
threats by ... a bomb should by any objective test have been
understood as meant seriously and that [such threats] would cause a
real sense of disquiet, fear and anxiety in an average person, in
particular in a situation where the victim has known the perpetrator
as an aggressive person out of control, as is the case with the
victim in the present case.
There is also no doubt that ... the defendant’s
threats extended throughout a period of half a year during which the
victim feared, owing to continued threats, not only for her own
safety but also for the safety and wellbeing of her child which was
not even a year old at the time. The victim was thus undoubtedly put
in a difficult and unenviable position where she feared daily for her
and her daughter’s life, which was confirmed not only in her
testimony but also the fact that she sought assistance from the
competent authorities [such as] the police, the Social Welfare Centre
and the State Attorney.
...
While examining ... the impugned judgment under Article
379 paragraph 1(2) of the Code of Criminal Procedure this appellate
court has established that the first-instance court violated the
statutory provisions to the detriment of the defendant when it
ordered that a security measure of compulsory psychiatric treatment
should continue after the defendant’s release [from prison],
which is contrary to Article 75 of the Criminal Code according to
which compulsory psychiatric treatment may last as long as the
reasons for its application exist but no longer than the prison term.
...
... this court does not agree with the defendant’s
argument that in his case the purpose of punishment would be achieved
by a suspended sentence, especially in view of the fact that the
defendant ... did not show any self-criticism as regards his acts or
any feelings of remorse for what he had said ...”
- M.M.
served his sentence in VaraZdin Prison and was released on 3 July
2006. On 15 August 2006 he shot M.T., her daughter V.T. and himself.
Before the shooting he was spotted by M.T.’s neighbour carrying
an automatic gun and leaving his bicycle in the adjacent woods. The
neighbour immediately called the police. The police arrived at the
scene twenty minutes later, just after the tragic event.
- On
15 August 2006 the police interviewed M.T.’s neighbour I.S. who
had seen M.M. approaching M.T.’s house immediately before the
critical event. At the request of
the police, on 17 August 2006 an investigating judge of the VaraZdin
County Court issued a
search warrant of a flat
and a vehicle belonging to a certain M.G. who was suspected of having
procured weapons for M.M. The warrant was executed the same
day, but no connection was
established between M.G. and the weapons used by M.M.. The
investigating judge has not taken any further steps in that case.
- On
18 August 2006 the police submitted a report to the Čakovec
County State Attorney’s Office detailing the circumstances of
the tragic event.
- On
28 November 2006 the State Attorney’s Office dismissed a
criminal complaint against M.M. for murdering M.T. and V.T. on the
ground that he was dead. It is unclear who lodged that complaint, but
a copy of this decision was sent to the applicants. In a letter of
the same day the State Attorney’s Office asked the Međimurje
Police Department to collect all information concerning psychiatric
treatment of M.M. in VaraZdin Prison. The relevant part of a report
drawn up on 13 December 2006 by the VaraZdin prison authorities reads
as follows:
“M.M. had been kept in detention on remand in
VaraZdin Prison from 3 February to 22 May 2006 when he was sent to
serve his prison term ... which expired on 3 July 2006.
A psychiatric examination of M.M. carried out during his
stay in detention showed that he suffered from a mixed personality
disorder which derived from innate malfunctioning of the brain and
the unfavourable pedagogical circumstances of his childhood. In the
same opinion the expert psychiatrist recommended that compulsory
psychiatric treatment be ordered with a predominantly
psychotherapeutic approach with the aim [that M.M.] develop an
ability to resolve difficult situations in life in a more
constructive manner.
While M.M. served his prison term, intensive treatment
consisting in frequent individual conversational sessions was
envisaged, in accordance with the individual programme of serving a
prison term. He rarely came for the sessions of his own accord and
was therefore, in [order to satisfy] the need for treatment,
requested to do so by the staff. ...
While in prison M.M. saw the prison doctor on five
occasions, sometimes of his own accord, sometimes at the doctor’s
call. He did not insist on his psychiatric therapy and therefore his
treatment was based, as recommended by the expert, on intensive
psychotherapeutic treatment by the staff, the prison governor and the
others who talked to him. He was a highly introverted person, so his
true personality could not be detected in detention or prison
conditions.”
- On
11 December 2006 the Međimurje Police Department interviewed the
VaraZdin prison governor, P.L. The relevant part of a report on the
interview drawn up on 2 December 2006 reads as follows:
“The above-mentioned is the governor of VaraZdin
Prison and he states that the late M.M. served his prison term in
VaraZdin Prison from 3 February to 3 July 2006 ...
While in prison M.M. underwent psychiatric treatment
pursuant to the expert opinion and recommendation. The treatment was
based on intensive psychotherapeutic treatment of M.M. consisting of
conversational sessions between M.M. and the prison staff, himself
[meaning the governor] and the prison doctor. During the treatment
M.M. neither received nor asked for any pharmacotherapy. It was also
established that M.M. was a very introverted person who did not wish
to cooperate in the treatment.
During his stay in the prison M.M. saw the prison doctor
on five occasions in connection with some other problems, that is to
say, illnesses.
He further maintains that there are no internal
regulations on the implementation of security measures and that all
treatment is carried out in accordance with the Enforcement of Prison
Sentences Act.”
- According
to the Government, since no oversights on the part of the persons in
charge of the execution of the M.M.’s prison term and security
measure had been established, the investigation was concluded,
although no formal decision to that effect has been adopted.
- M.M.’s
medical record from prison, submitted by the Government, does not
indicate any psychiatric or psychotherapeutic treatment.
- On
6 November 2006 the applicants submitted a proposal to the State
Attorney for a settlement of their claim for non-pecuniary damages
related to the deaths of M.T. and V.T. They alleged failures by the
competent authorities to take adequate steps to protect the lives of
M.T. and V.T. and inadequacy of the investigation into the
circumstances of their deaths. They sought 1,105,000 Croatian kunas
(HRK) in compensation and HRK 13,481 for costs. They received no
reply. Under section 186(a) of the Civil Procedure Act, where such a
request has been refused or no decision has been taken within three
months of its submission the person concerned may file an action with
the competent court. The applicants have not brought a civil action.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
21 of the Constitution (Ustav
Republike Hrvatske,
Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000,
124/2000 and 28/2001) reads as
follows:
“Every human
being has the right to life.
...”
- The
relevant part of the Constitutional Court Act (Ustavni
zakon o Ustavnom sudu,
Official Gazette no. 29/2002) reads as follows:
Section 38
“Everyone has
the right to request the institution of proceedings to review the
constitutionality of statutes ...”
Section 55
“(1) The
Constitutional Court shall quash a statute or its provisions if it
finds that they are incompatible with the Constitution ...”
- The
relevant part of Article 75 of the Criminal Code (Kaznenei zakon
Republike Hrvatske, Official Gazette nos. 110/1997, 28/1998,
50/2000, 129/2000, 51/2001, 11/2003 and 105/2004) reads as follows:
“The security measure of compulsory psychiatric
treatment may be imposed only as regards a perpetrator who, at the
time of committing a criminal offence, suffered from significantly
diminished responsibility [and] where there is a risk that the
factors giving rise to the state [of diminished responsibility] might
incite the future commission of a further criminal offence.
The security measure of compulsory psychiatric treatment
may be imposed, under the conditions set out in paragraph 1 of this
Article, during the execution of a prison sentence, in lieu of a
prison sentence or together with a suspended sentence.
Compulsory psychiatric treatment shall be imposed for as
long as the grounds for its application exist, but [it shall not] in
any case exceed the prison term ... Compulsory psychiatric treatment
shall not under any circumstances exceed three years.
...”
- The
relevant provisions of the Code of Criminal Procedure (Zakon o
kaznenom postupku, Official Gazette nos. 110/1997, 27/1998,
58/1999, 112/1999, 58/2002, 143/2002, 63/2002, 62/2003 and 115/2006)
read as follows:
Article 174(2)
“In order to ... decide whether to request an
investigation ... the State Attorney shall order the police to
collect the necessary information and take other measures concerning
the crime [at issue] with a view to identifying the perpetrator ...”
Article 177
“Where there is a suspicion that a criminal
offence liable to public prosecution has been committed, the police
shall take the necessary measures with a view to indentifying the
perpetrator ... and collect all information of possible relevance for
the conduct of the criminal proceedings...”
Article 187
“(1) An investigation shall be opened against a
particular individual where there is a suspicion that he or she has
committed a criminal offence.
(2) During the investigation evidence and information
necessary for deciding whether an indictment is to be brought or the
proceedings are to be discontinued shall be collected ...”
- The
relevant provisions of the Civil Obligations Act (Zakon o obveznim
odnosima, Official Gazette no. 35/2005) read as follows:
Section 19
“(1) Every legal entity and every natural person
has the right to respect for their personal integrity under the
conditions prescribed by this Act.
(2) The right to respect for one’s personal
integrity within the meaning of this Act includes the right to life,
physical and mental health, good reputation and honour, the right to
be respected, the right to respect for one’s name and privacy
of personal and family life, freedom et alia.
...”
Section 1100
“(1) Where a court finds it justifiable, on
account of the seriousness of an infringement of the right to respect
for one’s personal integrity and the circumstances of a
particular case, it shall award non-pecuniary damages, irrespective
of compensation for pecuniary damage or where no such damage exists.
...”
Section 1101
“(1) In the case of death or particularly serious
invalidity of a person the right to non-pecuniary damages shall vest
in his or her close family members (spouse, children and parents).
(2) Such damages may be awarded to the siblings,
grandparents, grandchildren and a common-law spouse where these
persons and the deceased permanently shared the same household.
„
- Section
13 of the State Administration Act (Zakon o ustrojstvu drZavne
uprave, Official Gazette nos. 75/1993, 48/1999, 15/2000 and
59/2001) reads as follows:
“The Republic of Croatia shall compensate damage
caused to a citizen, legal entity or other party by unlawful or
wrongful conduct of a State administration body, a body of local
self-government and administration ...”
- The
relevant part of section 186(a) of the Civil Procedure Act (Zakon
o parničnom postupku, Official Gazette nos. 53/91, 91/92,
58/93, 112/99, 88/01 and 117/03 reads as follows:
“A person intending to bring a civil suit against
the Republic of Croatia shall beforehand submit a request for a
settlement with the competent State Attorney’s office.
...
Where the request has been refused or no decision has
been taken within three months of its submission, the person
concerned may file an action with the competent court.
...”
- The
relevant provisions of the Enforcement of Prison Sentences Act (Zakon
o izvršavanju kazne zatvora, Official Gazette
nos. 128/1999 and 190/2003) read as follows:
PURPOSE OF A PRISON TERM
Section 2
“The main purpose of a prison term, apart from
humane treatment and respect for personal integrity of a person
serving a prison term, ... is development of his or her capacity for
life after release in accordance with the laws and general customs of
society.”
PREPARATION FOR RELEASE AND ASSISTANCE AFTER THE
RELEASE
Section 13
“During the enforcement of a prison sentence a
penitentiary or prison shall, together with the institutions and
other legal entities in charge of assistance after release, ensure
preparation of a prisoner for his or her release [from prison].”
INDIVIDUAL PRGRAMME FOR THE ENFORCEMENT OF A PRISON
TERM
Section 69
(1) The individual programme for the enforcement of a
prison term (hereinafter “the enforcement programme”)
consists of a combination of pedagogical, working, leisure, health,
psychological and safety acts and measures aimed at organising the
time spent during the prison term according to the character traits
and needs of a prisoner and the type and possibilities of a
particular penitentiary or prison. The enforcement programme shall be
designed with a view to fulfilling the purposes of a prison term
under section 7 of this Act.
(2) The enforcement programme shall be designed by a
prison governor on the proposal of a penitentiary or a prison’s
expert team ...
(3) The enforcement programme shall contain information
on ... special procedures (... psychological and psychiatric
assistance ... special security measures ...)
...”
HEALTH PROTECTION
Section 103
“(1) Inmates shall be provided with medical
treatment and regular care for their physical and mental health...”
- Section
22 of the State Attorney Act (Zakon o drZavnom odvjetništvu,
Official Gazette 75/1995) reads as follows:
“(1) The State Attorney’s Office is entitled
to compensation for the costs of representation before the courts and
other competent bodies according to the regulations on lawyers’
fees.
(2) Funds obtained as the costs of representation are
paid into the State’s budget.”
- As
regards civil proceedings for damages the Government submitted
several decisions of the Supreme Court expressing its opinion on the
responsibility of the State for damage caused by the administrative
authorities.
The
relevant parts of decision no. Rev 2203/1991-2 of 30 December 1991
read as follows:
“The employees of Open Penitentiary V.-P. and of
L. State Prison caused the damage in question by their unlawful and
wrongful conduct in allowing D.P. to escape from the penitentiary
instead of preventing his escape by the use of force if necessary
(sections 175 and 176, paragraph 140, of the Enforcement of Penal and
Misdemeanours Sanctions Act, Official Gazette nos. 21/74 and 39/74).
Enforcement of a sentence, and in particular the
enforcement of a prison term, fulfils the purpose of punishment
defined by law which includes, inter alia, preventing a
perpetrator from committing [a further] criminal offence by
restricting his freedom of movement. In the circumstances of the
present case the employees of the above-mentioned penitentiaries, for
whose conduct the defendant [the State] is liable, failed to [prevent
the escape] of a convict who repeated the same act of violence (in
even more serious circumstances) as the criminal offence for which he
had been convicted and placed in prison ... The fact that he
committed a criminal offence of robbery and caused damage to the
plaintiff and numerous other persons by acts of violence during his
escape shows that he is a danger to society who should have been
prevented from committing criminal offences by being kept in prison.
The same transpires from his previous criminal record ...
Therefore, in the case at issue there is a legally
relevant causal link between the unlawful and wrongful conduct of the
defendant’s employees, the escape and the harmful act ... which
all lead to the defendant’s liability.”
The
relevant part of decision no. Rev 186/04-2 of 10 January 2006 reads
as follows:
“Pursuant to section 13 of the State
Administration Act (Official Gazette nos. 75/93, 48/99, 15/00 and
59/01) the Republic of Croatia is obliged to compensate damage
resulting from unlawful or wrongful conduct of the State
administration bodies, bodies of local self-government and
administration ...
...
Conduct or an omission that is against a law or any
other regulation amounts to an unlawful act ... if there exists an
intent to cause damage to the rights or interests of third persons or
acceptance of that outcome .”
- The
applicants submitted several decisions of the Supreme Court
concerning the same issue.
The
relevant part of decision no. Rev 713/1998 of 13 September 2000 reads
as follows:
“Conduct or an omission that is against a law or
any other regulation amounts to an unlawful act only if there exists
an intent to cause damage to the rights and interests of a third
person or acceptance of that outcome. The same is true in respect of
conduct or a failure to act, contrary to the common or prescribed
manner of acting, amounting to wrongful conduct.”
The
relevant part of decision no. Rev 218/04-2 of 27 October 2004 reads
as follows:
“The plaintiffs’ claim for damages against
the Republic of Croatia is justified only where the statutory
conditions have been fulfilled, namely, that the damage is a
consequence of unlawful or wrongful conduct of a person or a body
performing [civil] service. Unlawful conduct means acting against a
law or any other regulation or an omission to apply a regulation with
intent to cause harm to a third person or acceptance of that outcome.
Wrongful conduct means an act or a failure to act that is contrary to
the common or prescribed manner of acting and from which it can be
concluded that there has been an intent to cause harm to the rights
and interests of a third person or acceptance of that outcome.”
The
relevant part of decision no. Rev 730/04-2 of 16 November 2005 reads
as follows:
“... unlawful conduct means acting against the law
or omitting to apply statutory provisions with intent to cause damage
to a third person or acceptance of that outcome. Wrongful conduct
means an act or a failure to act, contrary to the common or
prescribed manner of acting ... The burden of proof is on the
plaintiff. ... The plaintiff claiming damages is obliged to prove the
existence of damage, a harmful act by the defendant (in this case
unlawful or wrongful conduct of the State administration bodies
within the meaning of section 13 of the State Administration Act) and
a causal link between the harmful act and the actual damage.”
The
relevant part of decision no. Rev 257/06-2 of 18 May 2006 reads as
follows:
“The purpose of section 13 of the State
Administration Act is [to make] the State liable for the damage
caused by consciously acting against the law with intent to cause
damage to another.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants made a twofold complaint under Article 2 of the
Convention. They contended firstly that the State had failed to
comply with their positive obligations in order to prevent the deaths
of M.T. and V.T. and secondly that the State had failed to conduct a
thorough investigation into the possible responsibility of their
agents for the deaths of M.T. and V.T.
Article
2 of the Convention reads as follows:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. Admissibility
The parties’ submissions
- The
Government argued that the applicants had several remedies at their
disposal which they had failed to exhaust. Firstly, they had failed
to lodge a criminal complaint against any person they held
responsible for the deaths of M.T. and V.T., which would have enabled
them to propose evidence and investigating measures to be taken. Had
they done so, the competent State Attorney’s Office would have
issued a reasoned decision on their complaint. Even if such a
complaint had been dismissed, the applicants could have then
continued the criminal prosecution of their own motion.
- Secondly,
the applicants could have brought a civil action for compensation
against the State under sections 1100 and 1101 of the Civil
Obligations Act and under the Convention, which was directly
applicable in Croatia.
- Lastly,
the fact that the State’s liability existed only where a causal
link between a harmful act and the actual damage was proven was a
universally accepted principle of liability for damages that was not
specific to the Croatian legal system.
- The
applicants contended that under domestic law the third to fifth
applicants had no right to seek compensation for the death of V.T. A
civil action for compensation from the State, which was a possibility
open to all the applicants in respect of the death of M.T. and to the
first and second applicants in respect of the death of V.T, would
have had no prospect of success. That was because the requirements
established by the Supreme Court, namely, that the acts of the
responsible authorities had to be unlawful and that they had to have
acted with intent to cause damage to third persons or at least
acceptance of that outcome would have been impossible to prove.
Furthermore, if they had lost they would have had to bear the costs
of representation of the State in the proceedings by a State
Attorney’s Office, which was entitled to the fees set out in
the Scale of Lawyers’ Fees. According to the standards of the
Supreme Court’s case-law, the applicants could have claimed
about HRK 800,000 in compensation. As the costs of representation of
the State were to be assessed according to the value of the claim,
they would have amounted to about HRK 80,000. Thus they would have
exceeded the applicants’ joint annual income, which was about
HRK 14,000 since the only member of their family living in the same
household who had an income was the first applicant. In view of the
fact that their possible claim had no prospect of success, the risk
of having to bear the State Attorney’s fees, from which they
had no right of exemption, was very high. Bearing these costs would
have financially ruined them, which was why they had not lodged a
civil action against the State.
- As
to the Government’s objection that they should have lodged a
criminal complaint against the persons they considered responsible
for the deaths of their close relatives, the applicants argued that
all information known to them had also been known to the relevant
State authorities and that in those circumstances it had been
incumbent on the authorities to take appropriate steps to investigate
the deaths of M.T. and V.T.
The Court’s assessment
- The
Court points out that the purpose of Article 35 is to afford the
Contracting States the opportunity of preventing or putting right the
violations alleged against them before those allegations are
submitted to the Convention institutions. Consequently, States are
dispensed from answering for their acts before an international body
before they have had an opportunity to put matters right through
their own legal system. The rule of exhaustion of domestic remedies
referred to in Article 35 of the Convention requires that normal
recourse should be had by an applicant only to remedies that relate
to the breaches alleged and at the same time are available and
sufficient. The existence of such remedies must be sufficiently
certain not only in theory but also in practice, failing which they
will lack the requisite accessibility and effectiveness; it falls to
the respondent State to establish that these various conditions are
satisfied (see Selmouni v. France [GC], no. 25803/94,
§§ 74 and 75, ECHR 1999 V).
- Article
35 provides for a distribution of the burden of proof. It is
incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and in
practice at the relevant time, that is to say, that it was
accessible, was one which was capable of providing redress in respect
of the complaints invoked and offered reasonable prospects of success
(see Akdivar and Others v. Turkey, 16 September 1996, Reports
of Judgments and Decisions 1996 IV, § 68).
- The
Court would emphasise that the application of this rule must make due
allowance for the context. Accordingly, it has recognised that
Article 35 must be applied with some degree of flexibility and
without excessive formalism (see Cardot v. France, 19 March
1991, Series A no. 200, § 34). It has further
recognised that the rule of exhaustion of domestic remedies is
neither absolute nor capable of being applied automatically; in
reviewing whether the rule has been observed, it is essential to have
regard to the particular circumstances of the individual case (see
Van Oosterwijck v. Belgium, 6 November 1980, Series A
no. 40, § 35). This means, amongst other things, that
the Court must take realistic account not only of the existence of
formal remedies in the legal system of the Contracting Party
concerned but also of the general legal and political context in
which they operate as well as the personal circumstances of the
applicants (see Akdivar and Others, cited above, § 69).
- In respect of a substantive complaint of failure of
the State to take adequate positive measures to protect a person’s
life in violation of Article 2, the possibility of obtaining
compensation for the death of a person will generally, and in normal
circumstances, constitute an adequate and sufficient remedy (see, E.
and Others v. the United Kingdom, no. 33218/96, § 110
and, mutatis mutandis, Caraher v. the United Kingdom
(dec.), no. 24520/94, ECHR 2000 I).
- The
Court notes at the outset that the newly introduced sections 1100 and
1101 of the Civil Obligations Act, which entered into force on 1
January 2006, provide a possibility of seeking compensation in
connection with the death of one’s spouse, child or parent and
that compensation may also be awarded to the siblings, grandparents,
grandchildren and a common-law spouse where these persons and the
deceased permanently shared the same household. The Court therefore
finds that under domestic law the third to fifth applicants, being
her aunts and uncles, have no right of compensation for the killing
of V.T. It follows that the Government’s objection in respect
of the third to fifth applicants in connection with the death of V.T.
must be rejected.
- As
to the first and second applicants’ right of compensation for
the deaths of both M.T. and V.T. and the third to fifth applicants’
right of compensation for the death of M.T., the Court notes that
sections 1100 and 1101 of the Civil Obligations Act do provide a
legal ground for seeking compensation from the State. The Court will
now examine whether the Government have shown that a civil action for
compensation against the State is a remedy that has to be exhausted
in the circumstances of the present case.
- The
Court notes that after M.M. had killed M.T. and V.T. no
responsibility of the State officials involved was established in
respect of the relevant authorities’ duty to protect the lives
of the victims. In these circumstances it might be said that a civil
action for damages against the State does not have much prospect of
success, in particular in view of the requirement under domestic law
and practice that the State’s liability be engaged only in the
event of unlawful conduct on the part of the authorities or
unlawful failure to act and intent on the part of the authorities to
cause damage to a third person or acceptance of that outcome.
- However,
and notwithstanding the chances of success of a potential civil
action concerning the lawfulness of the acts of the relevant
authorities, the Court notes that in any event the issue here is not
a question of whether the authorities acted unlawfully or whether
there was any individual responsibility of a State official on
whatever grounds. Much more broadly, the central question of the
present case is the alleged deficiencies of the national system for
the protection of the lives of others from acts of dangerous
criminals who have been identified as such by the relevant
authorities and the treatment of such individuals, including the
legal framework within which the competent authorities are to operate
and the mechanisms provided for. In this connection the Court notes
that the Government have not shown that these issues, and in
particular the applicants’ complaint under Article 2 of the
Convention related to the insufficiencies of domestic law and
practice preceding the deaths of M.T. and V.T., could be examined in
any proceedings relied on by the Government.
- As
to the Government’s argument that after the killings of M.T.
and V.T. the applicants could also have lodged a criminal complaint,
the Court notes that a step in that respect was taken by an
investigating judge of the VaraZdin County Court when, on 17 August
2006, he ordered a search of a flat and vehicle of a certain M.G. who
had been suspected of having procured weapons to M.M. and by the
Čakovec State Attorney’s Office when, on 28 November 2006,
it asked the Međimurje Police Department to collect all
information concerning M.M.’s psychiatric treatment while he
had been serving his prison sentence. However, those steps did not
lead to any criminal or other proceedings against any of the persons
involved. The Court cannot see how an additional criminal complaint
about the same issues lodged by the applicants might have led to a
different outcome. In this connection the Court reiterates that in
cases concerning a death in circumstances that might give rise to the
State’s responsibility the authorities must act of their own
motion once the matter has come to their attention. They cannot leave
it to the initiative of the next-of-kin either to lodge a formal
complaint or to take responsibility for the conduct of any
investigative procedures (see, for example, McKerr v. the United
Kingdom, no. 28883/95, § 111, ECHR 2001-III, and Slimani
v. France, no. 57671/00, § 29, ECHR 2004 IX
(extracts)).
- It
follows that the remedies proposed by the Government did not have to
be exhausted. In making this conclusion, the Court has taken into
consideration the specific circumstances of the present case as well
as the fact that a right as fundamental as the right to life is at
stake (see, among other authorities, McCann and Others v. the
United Kingdom, 27 September 1995, Series A no. 324, §
147) and that the Convention is intended to guarantee rights that are
not theoretical or illusory, but rights that are practical and
effective (see, for example, Matthews v. the United Kingdom
[GC], no. 24833/94, § 34, ECHR 1999-I). Accordingly, the
Government’s objection has to be rejected.
- The
Court finds that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further finds that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
The parties’ arguments
- The
applicants complained that the State had failed to comply with their
positive obligation because, although it had been well known to the
authorities that M.M.’s threats against M.T. and V.T. had been
serious, they had failed to order and carry out a search of his
premises and vehicle in the course of the first set of criminal
proceedings against him in which he had been charged with making
serious threats against MT. and V.T. They argued that, before his
release from prison, the relevant authorities had failed to properly
administer his psychiatric treatment and evaluate his mental
condition and the likelihood that he would carry out his threats.
They alleged insufficiencies of the regulation concerning the
enforcement of a prison term and also maintained that the domestic
law was defective because an accused found guilty of a crime could be
given compulsory psychiatric treatment only for the duration of his
or her prison term. The applicants also complained that the domestic
authorities had failed to conduct a proper and thorough investigation
into the State’s possible responsibility for the deaths of
their close relatives.
- The
Government argued that the domestic authorities had taken M.M.’s
threats seriously and had for that reason remanded him in custody,
where he had stayed during the whole trial. He had been sentenced to
a prison term commensurate with the seriousness of his conviction and
within the statutory framework of the offence he had been charged
with. Furthermore, his compulsory psychiatric treatment had been
ordered during his prison term, as provided for under domestic law.
- As
to their procedural obligation under Article 2, the Government
contended that the competent State Attorney’s Office had
ordered the police to collect relevant information concerning the
deaths of M.T. and V.T. The police had, inter alia,
interviewed the prison governor, and this had shown how the measure
of compulsory psychiatric treatment had been administered. The State
Attorney’s Office had not found that there had been any failure
on the part of the prison authorities amounting to a criminal
offence. As to their participation in the investigation, the
applicants had failed to lodge a separate criminal complaint and had
not shown that they had ever sought to be informed about the
investigation.
The Court’s assessment
a. Substantive aspect of Article 2 of the Convention
General principles
- The
Court reiterates that Article 2 enjoins the State to take appropriate
steps to safeguard the lives of those within its jurisdiction (see
L.C.B. v. the United Kingdom, 9 June 1998, Reports of
Judgments and Decisions 1998-III, § 36). This involves a
primary duty on the State to secure the right to life by putting in
place effective criminal-law provisions to deter the commission of
offences against the person backed up by law-enforcement machinery
for the prevention, suppression and punishment of breaches of such
provisions (see Nachova and Others v. Bulgaria [GC], nos.
43577/98 and 43579/98, § 160, ECHR 2005-VII).
- It
also extends in appropriate circumstances to a positive obligation on
the authorities to take preventive operational measures to protect an
individual whose life is at risk from the criminal acts of another
individual. Bearing in mind the difficulties in policing modern
societies, the unpredictability of human conduct and the operational
choices which must be made in terms of priorities and resources, the
Court is also careful, when considering positive obligations, not to
interpret Article 2 in such a way as to impose an impossible or
disproportionate burden on authorities (see Osman v. the United
Kingdom, 28 October 1998, Reports of Judgments and Decisions
1998 VIII, § 116). Accordingly, not every claimed risk
to life can entail for the authorities a Convention requirement to
take operational measures to prevent that risk from materialising.
- A
positive obligation will arise where it has been established that the
authorities knew or ought to have known at the time of the existence
of a real and immediate risk to the life of an identified individual
from the criminal acts of a third party and that they failed to take
measures within the scope of their powers which, judged reasonably,
might have been expected to avoid that risk (see Osman, cited
above, § 116; Paul and Audrey Edwards v. the United
Kingdom, no. 46477/99, § 55, ECHR 2002-III; and Bromiley
v. the United Kingdom (dec.), no. 33747/96, 23 November
1999).
Application of these principles to the present case
- The
Court has examined firstly whether the relevant authorities were or
should have been aware that M.M. presented a risk for the lives of
M.T. and V.T. The Court notes that the competent State Attorney’s
Office instituted criminal proceedings against M.M. on charges of
making serious threats against M.T. and V.T., which resulted in M.M.
being found guilty as charged and sentenced to five months’
imprisonment. The domestic courts established that M.M. had been
making threats against M.T. and V.T. for a long period of time,
namely, from July to December 2005. They found further that he had
not refrained from repeating those threats both before the employees
of the Čakovec Welfare Centre and the police, including his
announcement that he was going to blow M.T. and V.T. up with a bomb
on the latter’s first birthday, which was 1 March 2006. He
repeatedly claimed that he was in possession of a bomb and could well
have had other weapons. That these threats were taken by the domestic
authorities as being meant seriously is shown by the fact that M.M.
was sentenced to an unconditional prison term. Furthermore, a
psychiatric examination of M.M. carried out in the course of the
criminal proceedings established that he was suffering from a mixed
personality disorder and was in need of compulsory psychiatric
treatment in order to develop the ability to cope with difficult
situations in life in a more constructive manner. It was established
further that there was a danger that he would repeat the same or
similar offences, which appears crucially important in the present
case.
- The
above findings of the domestic courts and the conclusions of the
psychiatric examination undoubtedly show that the domestic
authorities were aware that the threats made against the lives of
M.T. and V.T. were serious and that all reasonable steps should have
been taken in order to protect them from those threats. The Court
will now examine whether the relevant authorities took all steps
reasonable in the circumstances of the present case to protect the
lives of M.T. and V.T.
- The
Court firstly notes that although M.M. had mentioned on several
occasions that he had a bomb, and could well have had other weapons,
no search of his premises and vehicle was ordered in the course of
the initial criminal proceedings against him. No such search was
ordered and carried out, although the relevant authorities had been
aware of his above statements as early as 4 January 2006, when the
Čakovec Social Welfare Centre filed a report containing such
allegations with the Međimurje Police Department.
- The
Court notes further that a psychiatric report drawn up for the
purposes of the criminal proceedings against M.M. stressed the need
for continued psychiatric treatment in order to help him develop the
capacity for coping with difficult situations in life in a more
constructive manner. When the decision ordering his compulsory
psychiatric treatment became final and enforceable following the
adoption of the appellate court’s judgment of 28 April 2006,
M.M. had already spent two months and twenty-five days in detention.
Since he was sentenced to five months’ imprisonment, it follows
that his psychiatric treatment could only have lasted two months and
five days before his release from prison. The Court considers that in
such a short period M.M.’s psychiatric problems, in view of
their gravity as established in the psychiatric examination carried
out during the criminal proceedings against him, could hardly have
been addressed at all.
- Moreover,
the Government have failed to show that the compulsory psychiatric
treatment ordered in respect of M.M. during his prison term was
actually and properly administered. The documents submitted show that
the treatment of M.M. in prison consisted of conversational sessions
with the prison staff, none of whom was a psychiatrist. Furthermore,
the Government have failed to show that an individual programme for
the execution of M.M.’s prison term was designed by the
VaraZdin prison governor as required under section 69 of the
Enforcement of Prison Sentences Act. Such individual programme in
respect of M.M. takes on additional importance in view of the fact
that his prison term was combined with a measure as significant as
compulsory psychiatric treatment ordered by the domestic courts in
relation to the serious death threats he had made in order to help
him develop the capacity to cope with difficult situations in life in
a more constructive manner.
- The
Court notes further that the regulation concerning the enforcement of
a measure of compulsory psychiatric treatment, namely the relevant
provisions of the Enforcement of Prison Sentences Act, is of a very
general nature. In the Court’s view, the present case shows
that these general rules do not properly address the issue of
enforcement of obligatory psychiatric treatment as a security
measure, thus leaving it completely to the discretion of the prison
authorities to decide how to act. However, the Court considers that
such regulations need to be sufficient in order to ensure that the
purpose of criminal sanctions is properly satisfied. In the present
case neither the regulation on the matter nor the court’s
judgment ordering M.M.’s compulsory psychiatric treatment
provided sufficient details on the administration of this treatment
- Since
no adequate psychiatric treatment was provided to M.M. in the prison
there was also no assessment of his condition immediately prior to
his release from prison with a view to assessing the risk that, once
at large, he might carry out his previous threats against the lives
of M.T. and V.T. The Court finds such a failure particularly striking
given that his threats had been taken seriously by the courts and
that the prior psychiatric report expressly stated that there was a
strong likelihood that he might repeat the same or similar offences.
In this connection the Court notes that the appellate court
established in its judgment of 28 April 2006 that M.M. had not shown
any self-criticism as regards his acts or any remorse for what he had
said. Furthermore, the Court notes that M.M. said on several
occasions that he had meant to kill M.T. and V.T. on the latter’s
first birthday which was on 1 March 2006. In view of the fact that
M.M. spent that day in prison, a fresh assessment of the threat he
posed to the lives of M.T. and V.T. appears to have been all the more
necessary before his final release.
- The
Court also notes that the first instance court ordered a measure of
compulsory psychiatric treatment against M.M. during his imprisonment
and afterwards as necessary as recommended by the psychiatrist (see §
7 above). However, the appellate court reduced that measure to the
duration of his prison term since under Croatian law there is no
possibility of extending compulsory psychiatric treatment beyond a
prison term for those in need of such treatment.
- In
view of the above the Court considers that no adequate measures were
taken to diminish the likelihood of M.M. to carry out his threats
upon his release from prison (see Osman v. the United Kingdom,
cited above, § 116).
- The
facts of this case, as established above, are sufficient to enable
the Court to find a violation of the substantive aspect of Article 2
of the Convention on account of failure of the relevant domestic
authorities to take all necessary and reasonable steps in the
circumstances of the present case to afford protection for the lives
of M.T. and V.T.
b. Procedural aspect of Article 2 of the Convention
- The
Court reiterates that the obligation to protect life under Article 2
of the Convention requires that there should be some form of
effective official investigation when individuals have been killed as
a result of the use of force, either by State officials or private
individuals (see, mutatis mutandis, McCann and Others v.
the United Kingdom, cited above, § 161, and Kaya,
cited above, p. 329, § 105). The essential purpose of such an
investigation is to secure the effective implementation of the
domestic laws which protect the right to life (see, mutatis
mutandis, Paul and Audrey Edwards, cited above,
§ 69). The authorities must take the reasonable steps
available to them to secure the evidence concerning the incident. Any
deficiency in the investigation which undermines its ability to
establish the cause of death, or identify the person or persons
responsible, will risk falling foul of this standard. Whatever mode
is employed, the authorities must act of their own motion once the
matter has come to their attention (see, for example, mutatis
mutandis, Ilhan v. Turkey [GC], no. 22277/93, ECHR
2000-VII, § 63).
- In
the present case it was clear from the beginning that the perpetrator
of the acts in question was a private individual, M.M., and his
responsibility in that respect has never been put into question.
However, M.M. killed himself and therefore any further application of
criminal law mechanisms in respect of him became futile.
- It now remains to be established whether in the
circumstances of the present case the State had a further positive
obligation to investigate the criminal responsibility of any of the
State officials involved. The Court firstly reiterates that although
the right to have third parties prosecuted or sentenced for a
criminal offence cannot be asserted independently (see Perez v.
France [GC], no. 47287/99, § 70, ECHR 2004-I), the Court has
stated on a number of occasions that an effective judicial system, as
required by Article 2, may, and under certain circumstances must,
include recourse to the criminal law. However, if the infringement of
the right to life or to physical integrity is not caused
intentionally, the positive obligation imposed by Article 2 to set up
an effective judicial system does not necessarily require the
provision of a criminal-law remedy in every case. The Court has
already held that in the specific sphere of medical negligence, the
obligation may for instance also be satisfied if the legal system
affords victims a remedy in the civil courts, either alone or in
conjunction with a remedy in the criminal courts, enabling any
liability of the doctors concerned to be established and any
appropriate civil redress, such as an order for damages and for the
publication of the decision, to be obtained. Disciplinary measures
may also be envisaged (see Vo v. France [GC], no. 53924/00, §
90, ECHR 2004 VIII; Calvelli and Ciglio v. Italy [GC],
no. 32967/96, § 51, ECHR 2002 I; Lazzarini and Ghiacci
v. Italy (dec.), no. 53749/00, 7 November 2002;
Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR
2002-VIII and Tarariyeva v. Russia, no. 4353/03, § 75,
ECHR 2006 ... (extracts)). The same should apply in respect of
the possible responsibility of State officials for the deaths
occurring as a result of their negligence. However, the applicants’
complaint in respect of the substantive aspect of Article 2 of the
Convention is not whether there
was any individual responsibility of a State official on whatever
grounds. The Court considers that the central complaint concentrates
on the deficiencies of the national system for the protection of the
lives of others from acts of dangerous criminals who have been
identified as such by the relevant authorities and the treatment of
such individuals, including the legal framework within which the
competent authorities are to operate and the mechanisms provided for.
- In
view of the nature of the applicants’ complaint under the
substantive aspect of Article 2 of the Convention and the Court’s
finding in this respect which imply that the procedures involved were
necessarily insufficient from the standpoint of the substantive
aspect of Article 2, the Court considers that there is no need for it
to examine separately the applicants’ complaint under the
procedural aspect of Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants further complained that they had no effective remedy at
their disposal in respect of their Article 2 complaints. They relied
on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
finds that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government argued that the applicants could have requested a criminal
investigation into the deaths of M.T. and V.T. and also brought a
civil action for compensation against the State under sections 1100
and 1101 of the Civil Obligations Act.
- In
reply to the Government’s observations, the applicants
submitted that there had been no need for them to lodge a separate
criminal complaint because the authorities had been aware of all the
facts surrounding the deaths of M.T. and V.T. As to the civil remedy
relied on by the Government, they argued that it was not accessible
to them.
- The
Court notes at the outset that the applicant’s complaint under
Article 13 of the Convention is linked to their complaints under
Article 2 of the Convention, which are twofold (see paragraph 29
above). The Court proceeds by examining these two aspects of the
alleged violation of Article 13 separately.
- As
regards the applicant’s complaint that they had no effective
remedy in respect of their complaint concerning the procedural aspect
of Article 2 of the Convention, the Court considers that in view of
its findings in respect of that aspect of Article 2, no separate
issue is left to be examined under Article 13 of the Convention.
- As
regards the applicant’s complaint that they had no effective
remedy in respect of their allegations concerning the substantive
violation of Article 2 of the Convention, the Court finds
that what the applicants challenge is the whole system for the
protection of the lives of persons from the acts of dangerous
criminals, including the legal framework within which the competent
national authorities are to operate. In the Court’s view, these
are more questions of general policing in the national system for the
prevention of crimes and not issues which could be properly addressed
in any particular proceedings before the ordinary courts. It is not
for an ordinary court to say whether the regulatory standards in
operation are right or not, but to decide individual cases by
applying the existing laws.
- In
this connection the Court reiterates that Article 13 does not
guarantee a remedy allowing a Contracting State’s laws as such
to be challenged before a national authority on the ground of being
contrary to the Convention or equivalent domestic norms (see James
and Others v. the United Kingdom,
21 February 1986, Series A no. 98, § 85 and Leander
v. Sweden, 26 March
1987, Series A no. 116, § 77).
In Croatia the Convention has been incorporated into the national
legal system and the right to life is also guaranteed by the
Constitution and there is a possibility of challenging the
constitutionality of the laws before the Constitutional Court.
However, the applicants’ main complaint under the substantive
aspect of Article 2 of the Convention is not that the existing laws
and practices are unconstitutional but that they are deficient in
view of the requirements of Article 2 of the Convention, a claim that
cannot be challenged before the national courts, since it is for the
legislators and politicians involved in devising general criminal
policy to deal with such issues.
- However,
the role of an international court for the protection of human rights
is quite different from that of the national courts and it is for the
former to examine the existing standards for the protection of the
lives of persons, including the legal framework of a given State. In
these circumstances the Court considers that after having established
the State’s responsibility for the deaths of M.T. and V.T. by
finding a violation of the substantive aspect of Article 2 of the
Convention, no separate issue needs to be examined under Article 13
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- Each
applicant claimed 60,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government deemed the applicants’ claim for just satisfaction
unsubstantiated and unfounded.
- The
Court notes that it has found that the authorities, in relation to
the death of the applicants’ two close relatives breached the
Convention. In these circumstances the Court considers that the
applicants must have sustained non-pecuniary damage. Ruling on an
equitable basis and having regard to the awards made in comparable
cases, it awards the applicants EUR 40,000 jointly under that
head, plus any tax that may be chargeable to them.
B. Costs and expenses
- The
applicants also claimed HRK 9,150 for the costs and expenses incurred
before the Court.
- The
Government did not comment.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,300 for the
proceedings before the Court, plus any tax that may be chargeable to
the applicants.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
2 of the Convention in its substantive aspect, on account of the lack
of appropriate steps to prevent the deaths of M.T. and V.T.;
- Holds that there is no need to examine
separately the complaint under the procedural aspect of Article 2 of
the Convention;
4 Holds that there is no need to examine the
complaint under Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts which are to be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement:
(i) EUR
40,000 (forty thousand euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable to the applicants;
(ii) EUR
1,300 (one thousand three hundred euros) in respect of costs and
expenses, plus any tax that may be chargeable to the applicants;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 15 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Judge
Nicolaou is annexed to this judgment.
Concurring opinion of
judge Nicolaou
It
seems to me that what was primarily and urgently required in the
present case was effective police protection of the victims, mother
and child. That is not to say that psychiatric help, together with
social support measures, directed towards the perpetrator of the
crimes, should not also have been tried in the search for a better
solution to what was, obviously, a very difficult situation.
There
is, of course, no way of knowing whether compulsory psychiatric
treatment of “ a predominantly psychotherapeutic approach”,
as prescribed by expert appointed, would have been effective at least
in preventing the loss of life. What, however, is important here is
that the courts, both at first instance and on appeal, considered
that it was necessary to make such order, described in the relevant
law as a “security measure”. It must be assumed that the
courts were aware of the regulatory framework in which the order
would take effect, including possible difficulties in its enforcement
due to the lack of detailed rules. They must, nonetheless, have
expected compliance in the absence of which the order would have been
devoid of meaning and purpose. There was, unfortunately, no real
compliance. As is pointed out in paragraph 56 of the judgment, it has
not been shown “that the compulsory psychiatric treatment
ordered was actually and properly administered”.
It
would, undoubtedly, have been helpful to have had specific rules
spelling out the practical steps for the enforcement of psychiatric
treatment orders. But I find it difficult to accept that without such
rules the order in question was, from its inception, ineffectual. The
authorities have not explained convincingly that they did all that
was possible to provide an environment in which the order would stand
a chance of success. There is in fact no indication that specialist
psychiatric help was made available to M.M. and neither is there any
indication that efforts were made to enforce the order. It has been
said that M.M. was himself reluctant to cooperate; but it should not
be assumed that this would have persisted or that it would have
prevailed if appropriate expert help, in the right context, had been
forthcoming. Therefore, I am unable to subscribe to the view,
expressed in paragraph 42 of the judgment, that “in any event
the issue here is not a question of whether the authorities acted
unlawfully or whether there was any individual responsibility of a
State official on whatever grounds”.
In
Croatia, under a rule established by domestic case-law, the fact that
a person in authority is at fault, whether by act or omission, will
not render the State vicariously liable for compensation unless it is
shown “that there was an intent on the part of the authorities
to cause damage to a third person
or acceptance of that outcome”. That restriction seems to me to
be inconsistent with full State responsibility which must be regarded
as an indispensable component in the protection of life under Article
2.
Having
regard to the circumstances of the present case, the prospect of
civil liability should not be associated with suppositions concerning
what should have been the duration of sufficient treatment that would
signal either success or failure. In the absence of actual
experience, that could have been gained from properly administered
treatment, no valid assessment was possible. Therefore, domestic
provisions relating to length of treatment cannot here be directly
relevant; a problem regarding duration would arise only where it was
positively shown that a longer period of treatment was called for.
Finally
and perhaps most importantly, it should have been apparent, if those
responsible had carefully reflected on the situation, that the murder
victims were, after M.M.’s release from prison, imperatively in
need of police protection without which their lives remained in
mortal danger. Sadly, nothing at all was done in that direction and,
as it seems, no one has been held accountable in any way. In such
circumstances individual fault should not be completely discounted by
reason of imperfections in regulatory provisions concerning the
enforcement of psychiatric treatment orders.
