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FIRST
SECTION
CASE OF A. v. CROATIA
(Application
no. 55164/08)
JUDGMENT
STRASBOURG
14 October
2010
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 A v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 23 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 55164/08) 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 a Croatian national, Ms A (“the
applicant”), on 8 October 2008. The President of the
Chamber acceded to the applicant’s request not to have her name
disclosed (Rule 47 § 3 of the Rules of Court).
- The
applicant was represented by Ms S. Bezbradica, a lawyer practising in
Zagreb. The Croatian Government (“the Government”) were
represented by their Agent, Ms Š. StaZnik.
- On
3 September 2009 the President of the First Section decided to
communicate to the Government the complaints concerning the lack of
adequate positive measures under Articles 2, 3 and 8 of the
Convention, the complaint concerning the lack of an effective remedy
under Article 13 and the complaint under Article 14 that the
applicant was discriminated against on the basis of her gender. It
was also decided to examine the merits of the application at the same
time as its admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979 and lives in Z.
1. Background to the case
- On
21 April 2001 the applicant married B and on 14 May 2001 a daughter,
C, was born of the marriage. On 13 December 2005 the applicant
brought a civil action in the Z. Municipal Court (Općinski
sud u Z.), seeking a divorce from B. On 7 November 2006 the court
dissolved the marriage of the applicant and B.
- For
the purposes of criminal proceedings instituted against him in 2003,
B, who was still the applicant’s husband at the time, underwent
a psychiatric examination. The relevant part of the report drawn up
by two psychiatrists on 6 December 2004 indicated that B had been
captured during the Homeland War and detained in a concentration camp
from 3 April to 14 August 1992, where he had been tortured and
had sustained serious bodily injuries. It also indicated that since
1992 he had been suffering from mental disorders such as anxiety,
paranoia, epilepsy and post-traumatic stress disorder (PTSD).
The
relevant part of the report reads:
“The patient is primarily an emotionally immature
person who shows symptoms of chronic PTSD (lowered tolerance of
frustration, egocentrism, latent aggressiveness, a tendency towards
depressive reactions in stressful situations, as well as a worsening
of his condition and impaired social functioning, in particular in
family life).
...”
2. Criminal proceedings against B on charges of violent
behaviour within the family
- On
21 November 2005 B was arrested and detained on suspicion that he had
committed the criminal offence of violent behaviour within the
family. On 20 December 2005 the Z. State Attorney’s Office
indicted B in the Z. Municipal Court on charges of violent behaviour
within the family. The indictment alleged that from 12 November 2003
to 21 August 2005 B had verbally insulted and threatened the
applicant, prevented her from leaving the house and physically
assaulted her; on 12 November 2003 he had physically assaulted her by
punching her in the belly, throwing her on the floor and continuing
to hit and kick her in the body and head; on 7 August 2005 he
had hit the applicant in the face, back and hands, causing
lacerations; and on 21 August 2005 he had kicked her in the leg.
- On
20 December 2005 B was released, after his mother gave a statement
saying that she would immediately take B to their house in P.
However, after having been released, he continued abusing the
applicant and therefore on 9 January 2006 the applicant, together
with C, moved to a women’s shelter in Z. (hereinafter “the
shelter”) run by a non-governmental organisation.
- The
first hearing scheduled before the Z. Municipal Court for 29 March
2006 was adjourned because B did not appear. The second hearing was
held on 25 April 2006.
- On
22 May 2006 the Z. State Attorney’s Office extended the
indictment to the criminal offence of neglecting and molesting a
child or a minor. The extended indictment alleged that between
November 2003 and February 2006 B had continually abused the
applicant, both verbally and physically, in front of their daughter
C, as well as using inappropriate language in respect of C, and had
on several occasions punched and kicked C. Consequently, the case was
transferred to the juvenile division (odjel za mladeZ) of the
Z. Municipal Court.
- Further
hearings scheduled for 7 December 2006 and 20 February 2007 were
adjourned because B did not appear. A hearing scheduled for 17 April
2007 was adjourned until 9 May 2007 at the request of B’s legal
representative. At that hearing the judge ordered a psychiatric
examination of B.
- The
psychiatric examination established that B suffered from several
mental disorders, including PTSD. The report of 2 January 2008
concluded:
“In view of his mental state and the need for
continued control and supervision, I would recommend that the court
order a security measure of psychiatric treatment.
Treatment may be carried out in a day hospital and
without detention.
This would enable him to follow a regular programme of
therapy which would preserve his current relatively stable mental
condition and hence diminish the likelihood of his repeating the
criminal offences and, in practical terms, remove the risk to his
environment.”
- Another
hearing was held on 12 March 2008, at which the expert psychiatrist
was questioned. The expert stated that, owing to his difficult war
experiences, B suffered from PTSD; he was a neurotic person with a
slightly below-average intellectual level, reduced emotional capacity
and a passive-aggressive personality. For those reasons his
understanding of his own actions and his ability to control his
impulses were significantly reduced. The expert repeated his
recommendation that a security measure of compulsory psychiatric
treatment be applied.
- A
hearing scheduled for 29 April 2008 was adjourned until 4 June 2008
at the request of B’s legal representative. That hearing was
also adjourned because B did not appear. Hearings scheduled for 14
July and 3 October 2008 were adjourned because one of the
witnesses, an employee of the Z. Social Welfare Centre, did not
appear.
- At
a hearing held on 19 November 2008 the applicant gave evidence and
the court accepted proposals by both parties to call further
witnesses. At a hearing held on 10 December 2008 four witnesses gave
evidence. Further witnesses were called for the hearing scheduled for
21 January 2009, but the hearing was adjourned until 4 March 2009
since B and one prosecution witness did not appear. The hearing
scheduled for 4 March 2009 was also adjourned because B did not
appear and the hearing scheduled for 2 April 2009 was adjourned
because neither B nor the prosecutor appeared.
- On
6 April 2009 judge M.B. asked to be allowed to step down from the
case, since in March 2009 B had threatened her and she had reported B
to the police (see paragraph 23 below). The president of the Z.
Municipal Court granted her request on 21 April 2009.
- On
9 March 2009 B was admitted voluntarily to a psychiatric hospital,
where he stayed until 6 April 2009. On 18 April he again went to a
psychiatric hospital voluntarily. On 13 May 2009 the new judge
ordered an additional psychiatric examination of B, in order to
establish whether he was fit to stand trial. The expert concluded
that, even though B’s mental condition had deteriorated
somewhat, he was still capable of standing trial. B left the hospital
on 28 May 2009. Owing to the change of presiding judge in the
proceedings, all the evidence had to be presented again. The first
hearing in front of the new judge was held on 11 November 2009. A
hearing scheduled for 14 December 2009 was adjourned until 13 January
2010 at the request of B’s legal representative. A hearing was
held on 16 February 2010. The criminal proceedings are still pending.
3. Criminal proceedings against B on charges of making
threats against the applicant and a police officer
- On
1 March 2006 the Z. State Attorney’s Office indicted B in
the Z. Municipal Court on charges of making death threats against the
applicant on 1 March 2006.
- Further
to that, on 30 June 2006 B was arrested and detained on suspicion of
the criminal offence of making death threats against the applicant
and a police officer, I.G. On 27 July 2006 the Z. State Attorney’s
Office indicted B on charges of making death threats against the
applicant and I.G.
- On
8 September 2006 the two sets of proceedings were joined. On 16
October 2006 B was found guilty of three counts of making death
threats and sentenced to eight months’ imprisonment. The
relevant extracts from the operative part of the judgment read:
“B ...
is guilty
on the grounds that
1. in the period from 29 May to 12 June 2006 ... on the
official premises of the Social Welfare Centre, during meetings with
minor child C, in order to incite feelings of fear in his former wife
A, he whispered several times in her ear that she was a villain, that
he was going to get rid of her, that she knew what he was capable of
and that she would be swallowed up by darkness; on 14 June 2006 after
the meeting with his minor child, he approached A on the street in
front of the building of the Social Welfare Centre and whispered in
her ear to beware of him and that he was going to get rid of her,
which caused in A feelings of anxiety and fear for her own life...
2. during November 2005, in Z., on the premises of ...
police station during an interview [with the police conducted]
following a criminal complaint against him on allegations of having
committed the criminal offence of violent behaviour within the family
... told a policewoman ..., in order to incite in her feelings of
fear, that she brought shame upon the Croatian police, that she was
conspiring against him with his former wife, that he knew the head of
the police ... and Minister ... that these were her last days in
police service and that he was going to get rid of her; on 19 January
2006 in the Zagreb Minor Offences Court during her testimony, he
repeated that she brought shame upon the Croatian police, that she
was conspiring against him with his former wife and that he was going
to get rid of her, that he was not going to beat her but would have
done with her and would remember her, which caused in her feelings of
fear and of a risk to her own life...
3. on 21 November 2005 in Z., on the premises of ...
police department, in order to incite in her feelings of fear and
fear for her personal safety, called wife A several times on her
cellular phone, telling her to withdraw her criminal complaint
against him and, when she refused, told her that she would be
swallowed up by darkness, to beware of him, that nothing was going to
be as before and that he was going to put her in jail, which caused
in A feelings of fear and fear for her personal safety...”
- On
24 October 2006 B was released from detention. On the same day the Z.
Municipal Court issued a restraining order against B, prohibiting
access to the applicant at a distance of less than three hundred
metres, and prohibiting contact with the applicant.
- Both
the Z. State Attorney’s Office and B lodged appeals against the
first-instance judgment. On 22 May 2007 the judgment was upheld by
the Z. County Court and thus became final. The judgment has not yet
been enforced.
4. Criminal proceedings against B on charges of making
death threats against a judge and her minor daughter
- On
an unspecified date the Z. State Attorney’s Office indicted B
in the Z. Municipal Court on charges of making death threats against
judge M.B. and her minor daughter (see paragraph 16 above). In the
course of the proceedings B was arrested on 4 September 2009 and
placed in pre-trial detention. On 19 October 2009 the Z. Municipal
Court found B guilty as charged and sentenced him to three years’
imprisonment and also ordered his compulsory psychiatric treatment.
It seems that B is still in detention but no information has been
provided as to where and whether any psychiatric treatment has been
provided.
5. Minor offences proceedings against B
(a) The first set of proceedings
- On
7 January 2004 a police station lodged a request with the Z. Minor
Offences Court (Prekšajni sud u Z.) for minor offences
proceedings to be instituted against B. It was alleged that on 12
November 2003 B had assaulted the applicant and pushed her onto the
floor, while kicking her in the body and head.
- At
a hearing held on 8 June 2004 the applicant refused to give evidence
and the proceedings were discontinued.
(b) The second and third sets of
proceedings
- On
14 November 2005 a police station lodged two requests with the Z.
Minor Offences Court for minor offences proceedings to be instituted
against B.
- In
the first request, it was alleged that on 21 August 2005 B had
verbally abused the applicant in front of C and had kicked the
applicant in the leg. In a decision of 20 November 2006 the court
found B guilty of domestic violence and imposed a fine in the amount
of 2,000 Croatian kuna (HRK). There is no indication that this fine
has been enforced.
- In
the second request it was alleged that on 7 August 2005 B had first
forcefully stopped the applicant from taking a bath and had hit her
in the face, back and hands, causing lacerations. In a decision of 19
July 2007 the court found B guilty of domestic violence and imposed a
fine in the amount of HRK 7,000. However, this decision did not
become final because the proceedings were discontinued on 28 November
2007, having become time-barred.
(c) The fourth set of proceedings
- On
26 March 2006 the applicant lodged a request with the Z. Minor
Offences Court under the Protection against Domestic Violence Act,
for minor offences proceedings to be instituted against B. She
alleged that since 29 March 2005 B had repeatedly assaulted her in
front of C and caused her bodily injuries. These were described in
the enclosed medical reports of 29 March and 16 August 2005 as
contusions to the upper lip, right calf and right foot. The injuries
were classified as minor bodily injuries. He had further threatened
to kill her on 1 February 2006.
- The
applicant also requested that protective measures be immediately
imposed in the form of prohibiting access to her proximity, a
prohibition on harassing or stalking her and compulsory psycho-social
treatment. The applicant explained that B had been diagnosed with
several mental disorders and had been undergoing treatment for years.
She requested that the proceedings be instituted as a matter of
urgency.
- The
court held a preliminary hearing (pripremno ročište)
on 27 June 2006, and subsequent hearings on 19 September 2006 and 26
September 2006. In a decision of 2 October 2006 the court found B
guilty of domestic violence and imposed a fine in the amount of HRK
6,000. A protective measure prohibiting access to the applicant at a
distance of less than one hundred metres for a period of one year was
also ordered, as well as a protective measure of compulsory
psycho-social treatment for a period of six months. The relevant
extracts from the operative part of the decision read:
“B
is guilty
on the grounds that
on 1 February 2006 in their flat ... he threatened his
wife with the following words: ‘I will kill you, you won’t
walk again ... you will never see your child again’ in the
presence of their minor child C ... which acts of violence he
repeated on several subsequent occasions causing her physical
injuries also ...”
- On
30 October 2006 the applicant lodged an appeal, arguing that a
protective measure in the form of a prohibition on harassing or
stalking her and C and a protective measure of prohibition of access
to C should have also been applied. She argued further that the
measure of prohibition on access to her was not sufficiently precise
because the court had failed to specify the date on which the measure
was to be implemented. B also lodged an appeal.
- The
appeals of B and the applicant were dismissed on 31 January 2007 by
the High Minor Offences Court.
- B
paid HRK 1,000 of the fine. The remaining fine in the amount of HRK
5,000 was supplemented by a prison term which B has not served. The
Government explained that this was because Z. Prison was full to
capacity. Furthermore, B has not undergone the compulsory
psycho-social treatment because of the lack of licensed individuals
or agencies able to execute such a protective measure. Execution of
the sentence became time-barred on 31 January 2009.
- On
10 December 2007 the applicant informed the Z. Minor Offences Court
that B had violated the restraining order and that in October 2007 he
had hired a private detective who had come to her secret address
where she had been living after leaving the shelter. The applicant
reiterated her request for the application of an additional
protective measure in the form of a prohibition on harassing and
stalking a victim of violence. Her request was dismissed in a
decision of the Z. Minor Offences Court of 12 December 2007 on the
ground that she had not shown an immediate risk to her life. On 17
December 2007 the applicant lodged an appeal against that decision.
The court dismissed her appeal on 7 January 2008. The applicant
lodged a constitutional complaint against that decision on 18
February 2008. On 19 March 2008 the Constitutional Court found that
it had no jurisdiction in the matter.
6. Other relevant facts
- On
an unspecified date the applicant and C left the shelter and went to
live at a secret address. On 14 October 2007 an unknown man appeared
at their door. The applicant’s partner opened and the man at
the door introduced himself as a private detective hired by B to find
out the whereabouts of the applicant and C.
- The
applicant moved out and lived in a nearby village for five months.
According to the applicant, she was not able to find new
accommodation elsewhere because all the landlords she had approached
answered that they had no wish to deal with her violent ex-husband.
- In
the course of the divorce proceedings between the applicant and B,
the Z. Municipal Court issued an interim measure on 9 March 2006 and
ordered contact between B and C twice a week for one hour on the
premises of the Z. Social Welfare Centre, under expert supervision.
The applicant did not comply with the decision, so on 23 May 2006 the
court threatened her with a fine unless she complied with the order.
After that decision the applicant complied with the interim measure
until mid-June 2006.
- On
7 November 2006 the Z. Municipal Court dissolved the marriage of the
applicant and B and also ordered B to pay child maintenance for C. It
further prohibited B from contacting C. Both parties lodged appeals,
and on 11 September 2007 the Z. County Court (Zupanijski sud u Z.)
upheld the divorce but quashed the first-instance judgment concerning
the amount of maintenance to be paid in respect of C and the ban on
contact between B and C, and remitted the case in that part.
- On
7 October 2008 the Z. Municipal Court gave a fresh judgment on the
amount of maintenance and ordered contact between B and C twice a
month for two hours in a children’s play centre in Z., under
the expert supervision of the Z. Social Welfare Centre. Both parties
lodged appeals, and on 27 January 2009 the Z. County Court upheld the
part of the judgment concerning contact between B and C, quashed the
decision on maintenance and remitted the case in that part. The
proceedings on the child maintenance are still pending.
II. RELEVANT DOMESTIC LAW
Relevant criminal law
- The
relevant parts of the Criminal Code (Kaznenei zakon Republike
Hrvatske, Official Gazette nos. 110/1997, 28/1998, 50/2000,
129/2000, 51/2001, 11/2003, 105/2004, 84/2005 and 71/2006) read as
follows:
Article 75
“A 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.
A 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.
...”
BODILY INJURY
Article 98
“Anyone who inflicts bodily injury on another
person or impairs another person’s health shall be fined or
sentenced to imprisonment for a term not exceeding one year.”
Article 102
“Criminal proceedings for the offence of
inflicting bodily injury (Article 98) shall be instituted by means of
private prosecution.”
THREATS
Article 129
“(1) Anyone who threatens another person with harm
in order to intimidate or disturb that person shall be fined up to
one hundred and fifty monthly wages or sentenced to imprisonment for
a term not exceeding six months.
(2) Anyone who seriously threatens to kill another
person ... shall be fined or sentenced to imprisonment for a term not
exceeding one year.
...
(4) Criminal proceedings for the criminal offences
defined in paragraphs 1 and 2 of this Article shall be instituted
upon [a private] application.”
VIOLENT BEHAVIOUR WITHIN THE FAMILY
Article 215a
“A family member who by an act of violence,
ill-treatment or particularly contemptuous behaviour places another
family member in a humiliating position shall be sentenced to
imprisonment for a term of between six months and five years.”
Relevant minor offences law
- The
relevant provisions of the Protection against Domestic Violence Act
(Official Gazette no. 116/2003, Zakon o zaštiti of nasilja
u obitelji) provide:
Section 1
“This Act defines the term domestic violence,
persons considered as family members within the meaning of this Act,
the manner of protection of family members and the types and purpose
of minor offences sanctions.”
Section 2
“(1) The provisions of the Minor Offences Act are
to be applied in respect of minor offences in the sphere of domestic
violence, unless otherwise provided by this Act.
(2) All proceedings instituted under this Act shall be
urgent.”
Section 4
“Domestic violence is:
– any use of physical force or psychological
pressure against a person’s integrity;
– any other act by a family member which might
cause physical or mental suffering;
– causing fear, fear for personal safety or harm
to a person’s dignity;
– physical assault irrespective of whether it has
caused injury;
– verbal assaults, insults, cursing, calling names
or other forms of serious harassment;
– sexual harassment;
– stalking and all other forms of harassment;
– illegal isolation of a person or restricting his
or her freedom of movement or communication with others;
– causing damage to or destruction of property or
attempting to do so.”
Types and purpose of minor offences sanctions for
protection from domestic violence
Section 6
“(1) Minor offences sanctions for protection from
domestic violence are fines, imprisonment and protective measures.
...”
Protective measures
Section 7
“A court may order the following protective
measures against the perpetrator of an act of domestic violence
(a) compulsory psycho-social treatment;
(b) prohibiting access to the victim’s proximity;
(c) prohibition on harassing and stalking the victim of
violence;
(d) removal from flat, house or other living premises;
(e) providing protection to a person exposed to
violence;
(f) compulsory treatment for addiction;
(g) seizure of objects intended for or used in the
commission of a minor offence.”
Purpose of protective measures
Section 8
“The purpose of protective measures is to prevent
domestic violence, to secure the necessary protection of the health
and safety of a person exposed to violence and to remove the
circumstances favourable to or capable of inciting the commission of
a further minor offence.”
Protective measure of compulsory psycho-social
treatment
Section 9
“(1) A protective measure of obligatory
psycho-social treatment may be imposed in respect of the perpetrator
of an act of domestic violence in order to put an end to the violent
behaviour of the perpetrator or where there is a risk that the
perpetrator might reoffend against persons under section 3 of this
Act.
(2) The measure under paragraph 1 of this section shall
remain in place as long as the reasons for which it has been imposed
exist, but for no longer than six months.
...”
Protective measure prohibiting access to the victim’s
proximity
Section 10
“(1) A protective measure prohibiting access to
the victim’s proximity may be imposed against a person who has
committed an act of domestic violence where there is a risk that he
or she might reoffend.
(2) A decision imposing a measure prohibiting access to
the victim’s proximity shall define the places or areas covered
as well as the distance of access.
(3) The duration of a measure under paragraph one of
this section shall not be shorter than one month or exceed one year.
...”
Protective measure prohibiting the harassing and
stalking of a victim of violence
Section 11
“(1) A protective measure prohibiting the
harassing and stalking of a victim of violence may be ordered against
a person who has committed violence by harassing or stalking and
where there is a danger of his or her reoffending against persons
under section 3 of this Act.
(2) The measure under paragraph 1 of this section shall
be ordered for a period from one month to one year.
...”
Protective measure of providing protection to a
person exposed to violence
Section 13
“(1) A protective measure of providing protection
to a person exposed to violence may be ordered in respect of a person
exposed to violence for his or her physical protection and to enable
him or her to take from home his or her personal documents, clothes,
money or other items necessary for everyday life.
(2) The measure under paragraph 1 of this section shall
include an order to the police to escort the person exposed to
violence and protect that person while he or she takes his or her
personal items and to escort him or her while leaving the home.
(3) The duration of this measure shall be defined by the
duration of implementation of the court order.”
Ordering of protective measures
Section 16
“(1) Protective measures may be ordered at the
request of a person exposed to violence or of the police, or of the
court’s own motion.
(2) The protective measures under section 7 (a) and (g)
shall be ordered by the court of its own motion.
(3) The protective measures under this Act shall be
ordered for a period which shall not be less than one month, nor
shall it exceed two years from the date when a decision in minor
offence proceedings has become final or from the date of completion
of a prison term, if not otherwise provided under this Act.”
Section 17
“(1) The protective measures under section 7 (b),
(c), (d) and g) of this Act may be ordered independently even where
no other sanction has been imposed.
(2) The protective measures under paragraph 1 of this
section may be imposed at the request of a person who has lodged a
request for minor offences proceedings to be instituted, in order to
remove a direct risk to the life of persons exposed to violence or
other family members.
(3) A court shall give a decision under paragraphs 1 and
2 of this section within 48 hours.
...”
Responsibility for non-compliance with a protective
measure
Section 20
“(1) The perpetrators of domestic violence are
obliged to comply with the protective measure [ordered against them].
(2) Persons who do not comply with the protective
measure ordered against them shall be punished for a minor offence by
a fine which may not be less than 3,000 Croatian kuna or by at least
forty days’ imprisonment.
...”
- The
relevant part of the Minor Offences Act (Zakon o Prekršajima,
Official Gazette no. 88/2002) reads:
Section 30
“A fine may be prescribed in respect of an
individual in a minimum amount of 300 Croatian kuna and a maximum
amount of 10,000 Croatian kuna ...”
Section 31
“The prison term may be prescribed for a minimum
duration of three days and a maximum of thirty days. On an
exceptional basis, in respect of the most serious minor offences, it
may be prescribed for a maximum duration of sixty days.
...”
- 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 the personal integrity of the person
serving the prison term, ... is the development of his or her
capacity to live after release in accordance with the laws and
general customs of society.”
INDIVIDUAL PRGRAMME FOR 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 activities and measures aimed at adapting
the time spent in detention to the character traits and needs of the
prisoner and the type and possibilities of the 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 the
prison governor on a proposal from the penitentiary or prison expert
team...
(3) The enforcement programme shall contain information
on ... special procedures (... psychological and psychiatric
assistance ... special security measures...)
...”
III. COUNCIL OF EUROPE DOCUMENTS
- In
its Recommendation Rec(2002)5 of 30 April 2002 on the protection of
women against violence, the Committee of Ministers of the Council of
Europe stated, inter alia, that member States should
introduce, develop and/or improve where necessary national policies
against violence based on maximum safety and protection of victims,
support and assistance, adjustment of the criminal and civil law,
raising of public awareness, training for professionals confronted
with violence against women and prevention.
- The
Committee of Ministers recommended, in particular, that member States
should penalise serious violence against women such as sexual
violence and rape and abuse of the vulnerability of pregnant,
defenceless, ill, disabled or dependent victims, as well as
penalising any abuse of position by the perpetrator. The
Recommendation also states that member States should ensure that all
victims of violence are able to institute proceedings, make
provisions to ensure that criminal proceedings can be initiated by
the public prosecutor, encourage prosecutors to regard violence
against women as an aggravating or decisive factor in deciding
whether or not to prosecute in the public interest, ensure where
necessary that measures are taken to protect victims effectively
against threats and possible acts of revenge and take specific
measures to ensure that children’s rights are protected during
proceedings.
- With
regard to violence within the family, the Committee of Ministers
recommended that Member states should classify all forms of violence
within the family as criminal offences and envisage the possibility
of taking measures in order, inter alia, to enable the
judiciary to adopt interim measures aimed at protecting victims, to
ban the perpetrator from contacting, communicating with or
approaching the victim, or residing in or entering defined areas, to
penalise all breaches of the measures imposed on the perpetrator and
to establish a compulsory protocol for operation by the police,
medical and social services.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2, 3 and 8 OF THE
CONVENTION
- The
applicant complained that by failing to afford her adequate
protection against B’s violence the State authorities had
failed to comply with their positive obligations. She relied on
Articles 2, 3 and 8 of the Convention, the relevant parts of which
read:
Article 2 – Right to life
“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.
...”
Article 3 – Prohibition of torture
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 8 – Right to respect for private and
family life
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
- The
Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant argued that the State authorities had failed in their
positive obligations under Articles 2, 3 and 8 of the Convention in
respect of the acts of violence committed against her by B. She
maintained that although the national courts, in both criminal and
minor offences proceedings, had imposed certain sanctions and ordered
certain measures, most of these had not been enforced, thereby
seriously undermining any meaningful purpose of those proceedings.
The national courts had also misapplied the relevant provisions of
the applicable substantive and procedural law.
- She
also argued that the requirement for her to prove an immediate risk
to her life in order to have a protective measure of prohibition on
harassing and stalking a victim of violence applied put a
disproportionate burden on her as the victim of violent acts (see
paragraph 35 above). In any event the Z. Minor Offences Court had had
sufficient proof of a risk to her life because at that time B had
already been convicted of uttering death threats against her (see
paragraph 20 above).
- The
applicant further maintained that owing to the failure of the
national authorities to provide her with adequate protection against
B’s violence she had to live in fear for her physical integrity
and for her life, had had to hide in the shelter, together with C,
and had also had to move to a secret address.
- The
Government argued that in Croatia the protection of victims of
domestic violence was ensured through the mechanisms of criminal law,
and in particular the Protection against Domestic Violence Act. In
the present case the relevant authorities had reacted to the
incidents of violence against the applicant by B, had instituted
several sets of both criminal and minor offences proceedings and had
applied such criminal sanctions and protective measures against B as
they had considered proper and suitable in the circumstances. The
Government submitted that the prison term imposed on B for not paying
in full the fine imposed in the decision of the Z. Minor Offences
Court of 2 October 2006 had not been enforced because Z. Prison had
been full to capacity. Likewise, the measure of compulsory
psycho-social treatment imposed on B in the same decision had not
been implemented owing to the lack of licensed individuals or
agencies able to execute such a protective measure (see paragraphs 31
and 34 above).
- In
addition, the Government had adopted two national strategies for
protection against domestic violence (the first one covering the
period between 2005 and 2007 and the second covering the period
between 2008 and 2010) which included, inter alia, the
education of all those involved in cases of domestic violence and
cooperation with the non-governmental organisations working in that
field as well as financial and other support for them. Thus, in 2008
only sixteen new shelters with a total of 329 places for the victims
of violence had been established, of which six were State-funded.
2. The Court’s assessment
- The
Court takes note of B’s repeated violent behaviour towards the
applicant. The facts in issue concern frequent episodes of violence
in the period between November 2003 and June 2006, amounting to some
two years and seven months. The violence was both verbal, including
serious death threats, and physical, including hitting and kicking
the applicant in the head, face and body, causing her injuries. In
view of the fact that all the incidents of domestic violence in the
present case concerned the same perpetrator and occurred in a
continual manner, the Court will examine them as a continuous
situation.
- The
Court takes further note of the psychiatric reports concerning B
which indicated that he suffered from several mental disorders,
including a severe form of PTSD, emphasised his tendency towards
violence and his reduced ability to control his impulses, and
reiterated the recommendation for continuing compulsory psychiatric
treatment (see paragraphs 6, 12 and 13 above).
- The
above facts show that the applicant made credible assertions that
over a prolonged period of time B presented a threat to her physical
integrity and had actually attacked her on a number of occasions. In
view of these facts, the Court considers that the State authorities
had a positive obligation to protect the applicant from the violent
behaviour of her (former) husband. This obligation might arise under
all three Articles of the Convention relied upon, namely Articles 2,
3 and 8. However, in order to avoid further analysis as to whether
the death threats against the applicant engaged the State’s
positive obligation under Article 2 of the Convention, as well as
issues pertinent to the threshold for the purposes of Article 3 of
the Convention, the Court will analyse the circumstances of the
present case from the standpoint of Article 8 of the Convention.
- In
this connection the Court reiterates that there
is no doubt that the events giving raise to the present application
pertain to the sphere of private life within the meaning of Article 8
of the Convention. Indeed, the physical and moral integrity of an
individual is covered by the concept of private life. The concept of
private life extends also to the sphere of the relations of
individuals between themselves. There appears, furthermore, to be no
reason in principle why the notion of “private life”
should be taken to exclude attacks on one’s physical integrity
(see X and Y
v. the Netherlands,
26 March 1985, § 23, Series A no. 91).
59. While the essential
object of Article 8 is to protect the individual against arbitrary
action by the public authorities, there may in addition be positive
obligations inherent in effective “respect” for private
and family life and these obligations may involve the adoption of
measures in the sphere of the relations of individuals between
themselves (see, mutatis
mutandis, X
and Y, cited above,
§§ 23-24; Mikulić
v. Croatia, no.
53176/99, § 57, ECHR 2002-I; and Sandra
Janković v. Croatia, no. 38478/05,
§ 44, ECHR 2009 ... (extracts)).
- As
regards respect for private life, the Court has previously held, in
various contexts, that the concept of private life includes a
person’s physical and psychological integrity. Under Article 8
States have a duty to protect the physical and moral integrity of an
individual from other persons. To that end they are to maintain and
apply in practice an adequate legal framework affording protection
against acts of violence by private individuals (see X and
Y, cited above, §§ 22
and 23; Costello-Roberts v. the United Kingdom, 25
March 1993, § 36, Series A no. 247-C; D.P. and J.C.
v. the United Kingdom, no. 38719/97, § 118,
10 October 2002; M.C. v. Bulgaria,
no. 39272/98, §§ 150 and 152, ECHR 2003 XII;
Bevacqua and S.
v. Bulgaria, no.
71127/01, § 65, 12 June 2008; and
Sandra Janković,
cited above, § 45).
61. The Court will
therefore examine whether Croatia, in dealing with the applicant’s
case, has been in breach of its positive obligations under Article 8
of the Convention (see, mutatis
mutandis, Handyside
v. the United Kingdom,
7 December 1976, § 49, Series A no. 24).
(a) Measures ordered and implemented
(i) Detention
- As
to the measures taken against B by the Croatian authorities, the
Court notes that one of the measures applied against B was his
pre-trial detention. Thus, in the criminal proceedings on charges of
violent behaviour within the family, instituted on 21 November 2005
(see §§ 7–17
above), B was detained from 21 November to 20 December 2005.
These proceedings concerned the allegations of physical and verbal
violence against the applicant in the period between November 2003
and August 2005 as well as the allegations of child molestation. They
are still pending.
- In
the proceedings concerning the charges of making death threats
against the applicant and a policewoman, instituted on 1 March 2006
(see §§ 18-22 above),
B was detained from 30 June to 24 October 2006.
(ii) Other protective measures
- Further
to B’s detention, the national courts applied some other
measures against him. Thus, in the last-mentioned proceedings
concerning death threats against the applicant and a policewoman, the
Zagreb Municipal Court also issued a restraining order against B,
prohibiting access to the applicant at a distance of less than three
hundred metres and prohibiting contact with the applicant.
- In
the minor offences proceedings on charges of domestic violence,
instituted on 26 March 2006, the Zagreb Minor Offences Court ordered
a protective measure prohibiting access to the applicant at a
distance of less than one hundred metres for a period of one year
(see §§ 29-35 above).
(b) Measures recommended or ordered and
not followed or complied with
- However,
the Court notes that some further recommendations and measures were
not followed or complied with. It must be stated at this juncture
that it is not the Court’s task to verify whether the domestic
courts correctly applied domestic criminal law; what is in issue in
the present proceedings is not individual criminal-law liability, but
the State’s responsibility under the Convention. The Court must
grant substantial deference to the national courts in the choice of
appropriate measures, while also maintaining a certain power of
review and the power to intervene in cases of manifest disproportion
between the gravity of the act and the results obtained at domestic
level (see, mutatis mutandis, Nikolova and Velichkova v.
Bulgaria, no. 7888/03, § 62, 20 December 2007; Atalay
v. Turkey, no. 1249/03, § 40, 18 September 2008; and
Beganović v. Croatia,
no. 46423/06, §
78, ECHR 2009 ...).
- In
this connection the Court notes that the obligation on the State
under Article 8 of the Convention in cases involving acts of violence
against an applicant would usually require
the State to adopt adequate positive measures in the sphere of
criminal-law protection. The Court stresses that the
Convention is a living instrument which must be interpreted in the
light of present-day conditions and that the increasingly high
standard being required in the area of the protection of human rights
and fundamental liberties correspondingly and inevitably requires
greater firmness in assessing breaches of the fundamental values of
democratic societies (see, mutatis mutandis, Selmouni v.
France, [GC], no. 25803/94, § 101, ECHR 1999-V; Mayeka
and Mitunga v. Belgium, no. 13178/03, § 48, ECHR
2006 XI; and Sandra Janković,
cited above, § 47). Bringing to justice perpetrators of
violent acts serves mainly to ensure that such acts do not remain
ignored by the relevant authorities and to provide effective
protection against them.
(i) Detention
- In
the criminal proceedings instituted on 1 March 2006 the Zagreb
Municipal Court, in a judgment of 16 October 2006, found B guilty on
two counts of making death threats, against the applicant and against
a policewoman, and sentenced him to eight months’ imprisonment.
B has not yet started to serve that prison term.
- In
one of the sets of minor offences proceedings on charges of domestic
violence a decision was adopted on 2 October 2006 ordering the
applicant to pay a fine in the amount of HRK 6,000. He paid only
HRK 1,000 and the remaining HRK 5,000 was supplemented by a
prison term, but B never served his prison sentence. The Government
explained that this was because Z. Prison was full to capacity.
- Instead
he was arrested as late as 4 September 2009 in a separate set of
criminal proceedings concerning charges of death threats against a
judge and her daughter, and was placed in pre-trial detention. In
these proceedings a judgment sentencing B to three years’
imprisonment was adopted on 19 October 2009.
(ii) Psychiatric treatment
- At
the same time an order was made for B to undergo psychiatric
treatment. While the Court agrees that this measure was desirable, it
cannot but note that it was not applied in connection with any
proceedings concerning B’s violence against the applicant.
Furthermore, it was applied several years after the applicant had
reported frequent incidents involving verbal and physical violence
and death threats by B. The Court also notes that the Government have
provided no information as to whether an individual programme for the
execution of B’s prison term was designed by the prison
governor as required under section 69 of the Enforcement of Prison
Sentences Act. An individual programme of this kind in respect of B
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 (see, by way of comparison,
Branko Tomašić and Others v. Croatia,
no. 46598/06, § 56, ECHR
2009 ...).
- In
this connection the Court notes that as early as December 2004 a
psychiatrist who examined B found that he suffered from chronic PTSD,
with symptoms that included lowered tolerance of frustration, latent
aggressiveness, a worsening of his condition and impaired social
functioning, in particular in family life. In another psychiatric
report, dated January 2008, it was found that B was in need of
continuing psychiatric control and supervision and that a regular
programme of therapy would preserve his relatively stable mental
condition and hence diminish the likelihood of his repeating the
criminal offences and, in practical terms, remove the risk to his
environment.
- In
one set of minor offences proceedings on charges of domestic
violence, a decision of 2 October 2006 ordered that the applicant
should undergo psycho-social treatment in order to address his mental
health problems in connection with his violent behaviour (see
paragraph 31 above). However, owing to the lack of licensed
individuals or agencies able to execute such a protective measure, it
was never enforced (see §§
31-33 above).
(iii) Fines
- The
Court notes that the Government have not submitted any information
showing that the fine of HRK 2,000 which B was ordered to pay in the
minor offences proceedings on 20 November 2006 has been enforced.
Further to that, in another set of minor offences proceedings, he was
ordered to pay a fine in the amount of HRK 7,000 on 19 July 2007.
However, the national courts allowed these proceedings to become
time-barred when they were pending before the appeal court.
(c) Conclusion
- The
Court stresses that its task is
not to take the place of the competent Croatian authorities in
determining the most appropriate methods of protecting individuals
from attacks on their personal integrity, but rather to review under
the Convention the decisions that those authorities have taken in the
exercise of their power of appreciation (see Sandra
Janković, cited
above, § 46).
- In
line with the principle stated above, the Court is also aware that it
is for the national authorities to organise their legal systems so as
to comply with their positive obligations under the Convention, and
in that respect it is of course possible to conduct separate sets of
criminal proceedings against the same defendant in respect of
different criminal offences involving the same victim. However, in a
situation such as the one in the present case, where different sets
of criminal and minor offences proceedings concerned a series of
violent acts by the same person, namely B, and against the same
victim, namely the applicant, it appears that the requirement of
effective protection of the applicant’s right to respect for
her private life would have been better satisfied had the authorities
been in a position to view the situation as a whole. That would have
given them a better overview of the situation and an opportunity of
addressing the need to protect the applicant from various forms of
violence in the most appropriate and timely manner.
- The
Court recognises that the national courts instituted several sets of
minor offences and criminal proceedings against B, in the context of
which they ordered certain measures such as periods of pre-trial
detention, psychiatric or psycho-social treatment, restraining and
similar orders and even a prison term. By ordering these measures the
Croatian authorities showed that they considered them adequate and
necessary in order to address the situation of violence against the
applicant. The Court cannot but agree with that approach.
- The
national courts never overturned the measures in question or held
that they were no longer necessary. However, as explained above in
detail, many of these measures, such as periods of detention, fines,
psycho-social treatment and even a prison term, have not been
enforced (see paragraphs 68-74 above) and the recommendations for
continuing psychiatric treatment, made quite early on, were complied
with as late as 19 October 2009 and then in the context of
criminal proceedings unrelated to the violence against the applicant.
In addition, it is not certain that B has as yet undergone any
psychiatric treatment (see paragraph 23 above). The Court stresses
that the main purpose of imposing criminal sanctions is to restrain
and deter the offender from causing further harm. However, these aims
can hardly be achieved without the sanctions imposed being enforced.
- The
national authorities failed to implement measures ordered by the
national courts, aimed on the one hand at addressing B’s
psychiatric condition, which appear to have been at the root of his
violent behaviour, and on the other hand at providing the applicant
with protection against further violence by B. They thus left the
applicant for a prolonged period in a position in which they failed
to satisfy their positive obligations to ensure her right to respect
for her private life.
- There
has accordingly been a violation of Article 8 of the Convention. In
view of that finding, the Court considers that no separate issue
remains to be examined under Articles 2 and 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant further complained of the unfairness of the criminal and
minor offences proceedings instituted against B. She relied on
Article 6 § 1 of the Convention, the relevant part of which
provides:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
- The
Court notes that the applicant cannot rely on Article 6 of the
Convention in so far as her complaint relates to criminal proceedings
against third persons. Furthermore, the complaints made by the
applicant have been examined above in connection with the complaint
under Article 8 of the Convention.
- It
follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article
35 § 4.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant alleged that she had no effective remedy in respect of her
complaint under the Convention. She relied on Article 13 of the
Convention, which provides:
“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.”
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
under Article 8 of the Convention and must therefore likewise be
declared admissible.
- The
applicant argued that because of the failure of the national
authorities to enforce their own decisions adopted in various
proceedings instituted against B on charges of verbal and physical
violence against her, she had no effective remedy by which to obtain
protection against B’s violence. The Court notes that these
very same issues have already been examined above under Article 8 of
the Convention and have led to a finding of a violation of that
Article. Therefore, the Court considers that in the specific
circumstances of the present case it is not necessary to examine
whether, in this case, there has been a violation of Article 13 of
the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicant further complained that the relevant laws relating to
domestic violence were insufficient and ineffective and that since
acts of domestic violence were predominantly committed against women,
those laws were also discriminatory. She relied on Article 14 of the
Convention, which provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
1. The parties’ submissions
- The
applicant concentrated her arguments concerning the alleged violation
of Article 14 on three main points. Firstly, she argued that the
legislation pertinent to the incidents of domestic violence was
discriminatory in that it provided for minor offences proceedings in
respect of all acts of domestic violence, including instances of
serious physical abuse, while such violence occurring outside a
domestic context was dealt with through ordinary criminal-law
mechanisms. Furthermore, although a measure of compulsory psychiatric
treatment was provided for by law, in practice it had been entirely
ineffective.
- Secondly,
she argued that although the Government had adopted two national
strategies for protection against domestic violence (in 2005 and
2008) neither had been implemented. In that connection she stressed
that the training of experts working in the context of domestic
violence was insufficient and that there had been no evaluation of
such training.
- Thirdly,
the applicant maintained that the statistics relating to the
application of protective measures under the Protection against
Domestic Violence Act showed that in 2007, in the City of Zagreb, 173
cases concerning domestic violence had been processed under that Act.
In 98 of these cases a request had been made for the application of
protective measures; such measures had actually been applied in only
eleven cases, while in 40 cases they had been refused and in 47 cases
a judge had made no comments on the request for a protective measure.
The applicant submitted further official statistics showing that out
of 172 sets of minor offences proceedings conducted in 2007, 132 had
ended by finding both (former) spouses guilty. Of these, 70 cases had
resulted in a sentence of imprisonment, 38 of which had been
suspended. In the remaining 16 cases in which only one (former)
spouse was found guilty, men had been the perpetrators in 14 cases
and women in 2, while the other cases had been terminated without a
conviction.
- Separate
statistics were submitted regarding the length of proceedings
instituted under the Protection against Domestic Violence Act before
the High Minor Offences Court, which is an appeal court in minor
offences cases. In 2007 that court received 1,568 cases under the
said Act. In 461 cases the proceedings had lasted thirty days, in 574
cases between 31 and 60 days, in 420 cases they had lasted between 61
and 120 days and in 67 cases more than 121 days.
- The
Government argued that there had been no discriminatory treatment of
the applicant by any of the authorities involved. Unlike in the Opuz
case (see Opuz v. Turkey, no. 33401/02,
ECHR 2009 ...), the facts of the present case showed that
none of the authorities had treated the incidents of violence against
the applicant as a family matter they could not interfere with.
Furthermore, none of the officials had in any manner tried to
dissuade the applicant from pursuing her claims against B.
2. The Court’s assessment
- The
Court has already accepted that a general policy or measure which is
apparently neutral but has disproportionately prejudicial effects on
persons or groups of persons who, as for instance in the present
case, are identifiable only on the basis of gender, may be considered
discriminatory notwithstanding that it is not specifically aimed at
that group (see, mutatis mutandis, Hugh Jordan v. the
United Kingdom, no. 24746/94, § 154, 4 May
2001; Hoogendijk v. the Netherlands (dec.), no. 58461/00,
6 January 2005; and Oršuš
and Others v. Croatia [GC],
no. 15766/03, § 150, ECHR 2010 ...), unless
that measure is objectively justified by a legitimate aim and the
means of achieving that aim are appropriate, necessary and
proportionate. Furthermore, discrimination potentially contrary to
the Convention may result from a de facto situation (see Zarb
Adami v. Malta, no. 17209/02, § 76, ECHR
2006-VIII). Where an applicant
produces prima facie
evidence that the effect of a measure or practice is discriminatory,
the burden of proof will shift on to the respondent State, to whom it
falls to show that the difference in treatment is not discriminatory
(see Oršuš and Others,
cited above, § 150).
- The
Court notes that in Opuz, on the basis of reports submitted by
the applicants and prepared by the Convention on the Elimination of
All Forms of Discrimination against Women (CEDAW) Committee, the
Diyarbakır Bar Association and Amnesty International, it found
that general and discriminatory judicial passivity in Turkey, albeit
unintentional, had mainly affected women, and considered that the
violence suffered by the applicant and her mother could be regarded
as gender-based violence which was a form of discrimination against
women. Despite the reforms carried out by the Government in recent
years, the overall unresponsiveness of the judicial system and the
impunity enjoyed by the aggressors, as found in that case, indicated
that there had been insufficient commitment to take appropriate
action to address domestic violence (see Opuz, cited above,
§ 200).
- In
support of these findings the Court relied on the Turkish
Government’s recognition of the general attitude of the local
authorities, such as the manner in which the women were treated at
police stations when they reported domestic violence, and judicial
passivity in providing effective protection to victims (see Opuz,
cited above, § 192). Furthermore, the reports submitted
indicated that when victims reported domestic violence to police
stations, police officers did not investigate their complaints but
sought to assume the role of mediator by trying to convince the
victims to return home and drop their complaint. In this connection,
police officers considered the problem as a family matter with which
they could not interfere (see Opuz, cited above, §§
92, 96, 102 and 195). The reports also showed that there were
unreasonable delays in issuing injunctions and in serving injunctions
on the aggressors, given the negative attitude of the police
officers. Moreover, the perpetrators of domestic violence did not
seem to receive dissuasive punishments, because the courts mitigated
sentences on the grounds of custom, tradition or honour (see Opuz,
cited above, §§ 91-93, 95, 101, 103, 106 and 196).
- The
Court notes at the outset that in the present case the applicant has
not submitted any reports in respect of Croatia of the kind
concerning Turkey in the Opuz case. There is not sufficient
statistical or other information disclosing an appearance of
discriminatory treatment of women who are victims of domestic
violence on the part of the Croatian authorities such as the police,
law-enforcement or health-care personnel, social services,
prosecutors or judges of the courts of law. The applicant did not
allege that any of the officials involved in the cases concerning the
acts of violence against her had tried to dissuade her from pursuing
the prosecution of B or giving evidence in the proceedings instituted
against him, or that they had tried in any other manner to hamper her
efforts to seek protection against B’s violence.
- Starting
from the arguments submitted by the applicant (see paragraphs 89-92
above), the Court will proceed to examine whether they disclose prima
facie evidence of discrimination on the basis of gender.
- As
regards the applicant’s arguments related to the legislative
provisions covering the incidents of domestic violence, the Court
stresses that it is for
legislators and politicians to deal with the issues pertinent
to devising general criminal
policy, including the prevention of crime, in a given legal system
(see Branko Tomašić and Others, cited
above, § 73). The
Court’s task is to review under the Convention the decisions
that those authorities have taken.
- The
Court notes that, in Croatia, incidents of domestic violence
may be addressed both in minor offences proceedings and in ordinary
criminal proceedings. In the
Court’s view, the fact that certain acts of domestic
violence may be the subject of minor offences proceedings does not in
itself appear discriminatory on the basis of gender. In this
connection the Court notes that various types of sanctions and
measures may be applied in those proceedings, such as fines of up to
HRK 10,000, a prison term of up to sixty days and the preventive
measures listed in sections 7-10 of the Protection against Domestic
Violence Act (see paragraph 42 above). In addition to that the
criminal offence of violent behaviour within the family under Article
215a of the Criminal Code is punishable by a prison term ranging from
six months to five years. In the Court’s view the legislative
framework in question does not show any appearance of discrimination
on the basis of gender. Thus, in the present case several sets of
both minor offences and criminal proceedings were instituted against
B.
- The
Court has already established that not all the sanctions and measures
ordered or recommended in the context of these proceedings were
complied with. While this failure appears problematic from the
standpoint of Article 8 of the Convention, it does not in itself
disclose an appearance of discrimination or discriminatory intent on
the basis of gender in respect of the applicant.
- As
regards the national strategies for protection against domestic
violence adopted in 2008 and 2010, the Court notes that the
applicant’s allegation that the training of relevant experts
had been insufficient is unsupported by any relevant examples, data
or reports and cannot in itself lead to a conclusion of gender
discrimination in the treatment of incidents of domestic violence in
Croatia.
- As
regards the statistics concerning the implementation of protective
measures, the information submitted is again incomplete and
unsupported by relevant analysis and thus not capable of leading the
Court to draw any conclusions on that basis. As regards the other
statistics submitted, the only worrisome data is that out of 173 sets
of minor offences proceedings conducted in 2007 in connection with
incidents of domestic violence, in 132 sets of proceedings both
spouses were found guilty. However, no such findings were made in the
cases concerning the applicant.
- Against
the background described above, the Court finds that the applicant
has not produced sufficient prima
facie evidence that the
measures or practices adopted in Croatia in the context of domestic
violence, or the effects of such measures or practices, are
discriminatory. It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
V. 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
- The
applicant claimed 20,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government deemed the amount claimed excessive and unsubstantiated.
- Having
regard to all the circumstances of the present case, the Court
accepts that the applicant suffered non-pecuniary damage which cannot
be compensated for solely by the finding of a violation. Making its
assessment on an equitable basis, the Court awards the applicant EUR
9,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable to her.
B. Costs and expenses
- The
applicant also claimed HRK 8,659.30 for the costs and expenses
incurred before the Constitutional Court and HRK 23,515.60 for those
incurred before the Court.
- The
Government submitted that the applicant was not entitled to any costs
and expenses before the national courts.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these were actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
accepts that the applicant’s constitutional complaint was aimed
at remedying the situation of violation claimed by the applicant in
the present case. It therefore awards the claim for costs and
expenses in the domestic proceedings in the amount of EUR 1,200
and considers it reasonable to award the sum of EUR 3,270 for the
proceedings before the Court, plus any tax that may be chargeable to
her on those amounts.
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 complaints submitted under Articles
2, 3, 8 and 13 of the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that there is no need to examine the
complaints under Articles 2, 3 and 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
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 Croatian kuna at the rate
applicable on the date of settlement:
(i) EUR
9,000 (nine thousand euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR
4,470 (four thousand four hundred and seventy euros), plus
any tax that may be chargeable to the applicant, in respect of
costs and expenses;
(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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
