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SECOND
SECTION
CASE OF MILANOVIĆ v. SERBIA
(Application
no. 44614/07)
JUDGMENT
STRASBOURG
14
December 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 Milanović v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Nona
Tsotsoria,
Kristina Pardalos,
Guido Raimondi,
judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 23 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 44614/07) against Serbia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Serbian national, Mr Zivota Milanović
(“the applicant”), on 2 October 2007.
- The
applicant was represented by Ms T. Drobnjak, a lawyer practising in
Belgrade. The Serbian Government (“the Government”) were
represented by their Agent, Mr S. Carić.
- The
President of the Chamber gave priority to the application in
accordance with Rule 41 of the Rules of Court.
- The
applicant complained about a series of religiously motivated attacks
perpetrated against him.
- On
16 November 2009 the Court decided to communicate the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it was also decided that the merits of the application
would be examined together with its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Zivota Milanović, was born in 1961 and lives in
the village of Belica, Jagodina Municipality, Serbia. Occasionally,
however, he stays in his relative's vacant flat in Jagodina, a town
comprised of some 35,000 inhabitants.
A. Introduction
- The
applicant has been a leading member of the Vaishnava Hindu religious
community in Serbia, otherwise known as Hare Krishna, since 1984.
- In
2000 and 2001 the applicant, apparently, began receiving anonymous
telephone threats. On one such occasion, he was allegedly told that
he would be “burned for spreading his Gypsy faith”.
- Later
in 2001 the applicant informed the Jagodina Police Department (SUP
Jagodina, hereinafter “the police”) about these
threats and expressed his impression that they were made by members
of an organisation called Srpski vitezovi, a local branch of a
better known far-right organisation called Obraz.
B. The attacks of September 2001 and other related
facts
- On
an unspecified date in September 2001, in the evening hours, the
applicant was attacked from behind by an unknown man, in front of his
relative's flat in Jagodina, and was hit over the head by what seemed
like some sort of a wooden bat.
- On
24 September 2001, at approximately 12.30 a.m., the applicant was
assaulted once again by one of three unidentified men present. The
assailant inflicted several cuts to the applicant's head and chest
and cut off his pigtail. The attack, once more, occurred in front of
his relative's flat in Jagodina.
- On
the same day, after having received medical assistance, the applicant
reported the latter incident to the police. He stated, inter alia,
that his attackers probably belonged to an extremist organisation
called Srpski vitezovi.
- Later
that day, the police conducted an on-site investigation, and
unsuccessfully attempted to contact the applicant. The neighbours
apparently said that the applicant rarely stayed in his relative's
flat.
- On
25 September 2001 the police re-interviewed the applicant, who stated
that the men who had attacked him on 24 September 2001 had been “big
and strong”, but that it had been too dark for him to see
anything else. He also recounted the earlier attack, but explained
that he had not reported it to the police since he had “not
seen his attacker”.
- On
the same day the police issued an internal document wherein they
outlined a “plan of action”. As part of that plan, the
police apparently questioned three members of a local skinhead group,
but these persons provided them with “no useful information”.
- On
30 September 2001 and 5 October 2001 the police interviewed all local
school headmasters in an attempt to gather information about the
organisations referred to by the applicant. Once again, however, “no
useful information” was obtained.
C. The attack of July 2005 and other related facts
- On
the evening of 11 July 2005 the applicant suffered another attack. In
the proximity of his relative's flat in Jagodina, one of three
unknown youths present stabbed the applicant in his abdomen. The
incident was reported to the police by the local hospital which had
provided the applicant with urgent medical care.
- The
police thereafter arrived at the hospital and interviewed the
applicant, who described the attack and insisted that it had been
religiously motivated.
- On
five separate occasions between 13 July 2005 and 27 July 2005 the
police attempted to contact the applicant at his relative's address
in Jagodina, but to no avail. They learned from the neighbours that
the applicant mostly lived with his parents in the village of Belica
and only rarely spent time in Jagodina. The neighbours also informed
the police that they had not seen the incident in question.
- In
his note of 13 July 2005 a police officer stated that the applicant,
when interviewed on 11 July 2005, had failed to give the necessary
details concerning the incident. Moreover, despite having had a
mobile phone on his person during and after the attack he had not
immediately called the police, which would have greatly facilitated
the investigation.
- On
20 July 2005 the police apparently visited several locations in an
attempt to “identify” the organisation called “Srpski
vitezovi”, but “no useful information was obtained”.
- On
31 July 2005 the police briefly talked to the applicant in the
village of Belica. In their report of the same date they stated that
the applicant, however, “wanted no further contact” and
noted his well-known religious affiliation, as well as his “rather
strange appearance”.
- On
4 August 2005 the police again attempted to contact the applicant in
the village of Belica. As it transpired, the applicant was not to be
found there and the police were told by the neighbours that he stayed
in the village mostly during the winter months.
- On
25 August 2005 the police informed the Ministry of Internal Affairs
(Ministarstvo unutrašnjih
poslova) that they had found no evidence that organisations
called Srpski vitezovi and Obraz, respectively, had
ever existed in the Municipality of Jagodina. The police further
noted that the applicant was a member of a “religious sect”
called Hare Krishna.
- On
26 August 2005 and 29 August 2005 the police attempted to contact the
applicant at various locations, but to no avail.
- On
15 September 2005 the police filed a criminal complaint against
unknown perpetrators with the Municipal Public Prosecutor's Office
(Opštinsko javno tuZilaštvo) in Jagodina. The
complaint concerned the attack of 11 July 2005 and classified the
incident as “a minor bodily injury inflicted by means of a
dangerous weapon”.
- On
19 September 2005 the applicant was re-interviewed by the police.
- Later
that month the applicant provided the officers with a copy of the
“The Serbian Front” (Srpski front), alleging that
the said magazine was published by the nationalist organisations
whose members had probably attacked him.
- On
an unspecified date thereafter, the Lawyers' Committee for Human
Rights (Komitet pravnika za ljudska prava) addressed the
Ministry of Internal Affairs on behalf of the applicant.
- On
19 October 2005 the Ministry stated that the local police had indeed
failed in their duty to identify the applicant's assailants. The
Ministry, however, promised to do so shortly, and to press charges
against the individuals responsible.
- On
15 March 2006 the applicant and the Youth Initiative for Human Rights
(Inicijativa mladih za ljudska parva) jointly filed a criminal
complaint with the District Public Prosecutor's Office (OkruZno
javno tuZilaštvo) in Jagodina. The complaint referred to
the incident of 11 July 2005 and alleged that the applicant had been
a victim of a crime called “incitement to ethnic, racial and
religious hatred and intolerance” (izazivanje nacionalne,
rasne i verske mrZnje i
netrpeljivosti, hereinafter “hate crime”), which
crime had been committed by means of ill-treatment. The criminal
complaint was supplemented by a medical certificate documenting the
applicant's injuries.
- On
12 April 2006 the District Public Prosecutor's Office informed the
police about this criminal complaint and requested that “necessary
measures be undertaken”.
- On
11 June 2006 the police attempted to contact the applicant, but to no
avail.
D. The attacks of June 2006 and other related facts
- On
18 June 2006, at approximately 2.30 a.m., the applicant was attacked
yet again on the doorstep of his relative's flat in Jagodina, this
time by a lone, unknown assailant, who stabbed him in his abdomen and
scratched a crucifix on his head. The applicant stated that his
attacker was hooded, some 180 cm tall, wore a dark sweater, and was
accompanied by another man. The applicant was taken by taxi to a
hospital, where he was promptly provided with medical assistance, and
the doctors reported the incident to the police, who immediately took
the applicant's statement and conducted an on-site investigation.
However, no material evidence was found and no persons fitting the
applicant's description of the attackers were identified.
- On
23 June 2006 the police re-visited the scene of the crime, and talked
to a neighbour whose balcony overlooked the street. The neighbour
apparently stated that he had not seen the incident and had also
never seen the applicant in the company of others.
- Between
1 July 2006 and 8 July 2006 the police canvassed the other
neighbours, but again to no avail.
- On
3 July 2006 the applicant and the Youth Initiative for Human Rights
jointly filed a criminal complaint with the District Public
Prosecutor's Office concerning the incident of 18 June 2006. The
complaint alleged that the applicant had been a victim of a hate
crime, as well as the crime of serious bodily injury (teška
telesna povreda). The applicant attached a medical certificate
documenting his injuries and a number of photographs to the same
effect.
- On
7 July 2006 the police interviewed the taxi driver who, however,
offered no additional insight as regards the incident.
- On
20 July 2006 the applicant gave a statement to the police,
maintaining that the attack against him had been carried out by a
“clero-fascist” organisation. In this respect, the
applicant invited the police to question the regional head of a
political party in Serbia as to whether any of his party's members
were skinheads, as well as to visit a local church where, allegedly,
the organisation called Obraz “had its premises”.
- On
21 July 2006 the District Public Prosecutor's Office informed the
police of the criminal complaint filed on 3 July 2006.
- By
August 2006 the police filed a criminal complaint against unknown
perpetrators with the Municipal Public Prosecutor's Office (Opštinsko
javno tuZilaštvo) in Jagodina. The complaint concerned the
attack of 18 June 2006 and classified the applicant's injuries as
minor in character.
- On
22 August 2006 the police interviewed the local priest, who dismissed
the assertion that any extremist organisation or informal group had
ever had its seat in the church or any of its premises. He further
stressed that he had only heard of an organisation called Obraz
from the media.
- By
25 August 2006 two senior members of the local and regional branch of
the political party in question told the police that their membership
did not include any skinheads or members of Obraz. They
further emphasised that the applicant may have been manipulated by
other political parties.
E. The attack of June 2007 and other related facts
- On
29 June 2007, at approximately 4.20 a.m., the applicant was assaulted
once again. Having opened the door of his relative's flat in Jagodina
to a man who had said that he was from the police, the applicant was
stabbed in his chest, hands and legs. The incident was reported to
the police by the local hospital which had provided the applicant
with urgent medical care.
- The
police thereafter arrived at the hospital and interviewed the
applicant, who recounted the attack, adding that his assailant had
been a big man with a shaved head and had been dressed in dark
clothes.
- The
police subsequently conducted an on-site investigation and searched
for the applicant's attacker but could not find anyone fitting the
description. The police noted that the applicant's clothes had not
been slashed or torn and discovered “no material evidence”.
- On
2 July 2007 the applicant filed a criminal complaint with the police.
- On
5 July 2007 the applicant and the Youth Initiative for Human Rights
jointly filed an additional criminal complaint with the District
Public Prosecutor's Office. The complaint concerned the incident of
29 June 2007 and alleged that the applicant had been a victim of a
hate crime, as well as the crime of serious bodily injury. Again, the
applicant attached a medical certificate documenting his injuries and
a number of photographs to the same effect.
- On
11 July 2007 the District Public Prosecutor's Office informed the
police of this criminal complaint and requested that all necessary
steps be taken to identify the perpetrator.
- On
13 July 2007 the same office repeated this request.
F. Other relevant facts
- The
knives used to attack the applicant had apparently had shortened
blades and were designed so as not to inflict fatal injuries.
- In
his report of 27 September 2001 a police officer noted that on
26 September 2001 the applicant had gone to the premises of a
local television station to protest against its earlier programme in
which the Hare Krishna had been depicted as a dangerous sect. The
officer noted that the applicant had apparently been verbally abusive
towards the station's chief editor, as well as a journalist, and
ultimately had had to be removed from the building by the security
staff.
- In
response to a complaint sent on behalf of the applicant by the
Lawyers' Committee for Human Rights, on 28 September 2005 the
Inspector General of the Ministry of Internal Affairs stated that, as
regards the attacks of September 2001 and July 2005, the police had
not acted with the necessary diligence. Based on this conclusion, on
7 November 2005 one of the officers involved in the investigation was
sanctioned with a 10% salary reduction.
- It
would appear, from numerous media reports, that in December 2005 the
Ministry of Internal Affairs declared several organisations as
extremist, including Obraz, which was described as
clero-fascist.
- On
19 October 2006 the lawyer acting on behalf of the applicant and the
Youth Initiative for Human Rights (“the lawyer”)
requested an update from the District Public Prosecutor's Office as
regards the status of the two criminal complaints filed in respect of
the attacks of 11 July 2005 and 18 June 2006. On 31 October 2006
the said office informed the lawyer that the criminal complaints had
been forwarded to the police, but that the latter had failed to
provide it with any information whatsoever. On 6 March 2007 the
lawyer requested another update from the District Public Prosecutor's
Office and on 9 March 2007 this office informed her that it was yet
to receive any information from the police.
- On
19 July 2007 the District Public Prosecutor's Office informed the
applicant that the police had failed to provide it with any
information in respect of the three criminal complaints filed as of
July 2005.
- On
7 March 2008 the investigating judge, as part of a preliminary
investigation aimed at identifying the perpetrators, heard the
applicant in respect of all of the attacks committed against him. The
applicant recounted the incidents adding, inter alia, that he
believed that he had seen his attacker of 29 June 2007 at some point
later that year. The young man in question had been walking down the
street with another closely shaved youth, and both had been wearing
shirts with the year 1389 printed on them (it would appear that the
said year referred to the medieval battle of Kosovo between the Serbs
and the Turks, and possibly to a far-right organisation bearing this
year as a part of its name, Srpski narodni pokret 1389).
- On
23 April 2008 a medical expert diagnosed the physical harm suffered
by the applicant as amounting to minor bodily injuries (lake
telesne povrede) inflicted with a dangerous weapon.
- On
7 May 2008 the District Public Prosecutor's Office informed the
police of this finding and requested action.
- Between
10 October 2008 and 20 January 2009 the police apparently conducted
interviews with six persons suspected of committing knife-related
crimes, but “no useful information was obtained”.
- On
25 November 2008 the police interviewed a certain B.M. whom they had
come to suspect as one of the applicant's possible attackers. B.M.,
however, maintained that he had no knowledge of any of the incidents.
- The
applicant maintained that on one occasion the police had advised him
not to go out in the evenings since this “clearly provoked”
others, and had repeatedly seemed more interested in discussing his
religious beliefs rather than the incidents in question. The
Government submitted that the applicant had provided no
substantiation for these particular allegations.
- In
September 2009 the Chief Public Prosecutor (Republički javni
tuZilac) petitioned the Constitutional Court (Ustavni sud)
to ban both Obraz and Srpski narodni pokret 1389,
because of, inter alia, their incitement to racial and
religious hatred throughout Serbia.
- In
their report of 12 April 2010, inter alia, the police noted
that: (a) most of the attacks against the applicant had been reported
around Vidovdan, a major orthodox religious holiday; (b) the
applicant had subsequently publicised these incidents through the
mass media and, whilst so doing, “emphasised” his own
religious affiliation; (c) the nature of the applicant's injuries had
been such that their self-infliction could not be excluded; and (d)
the injuries had all been very shallow, which could be considered
peculiar and would imply great skill on the part of the applicant's
attackers who had never managed to hold him down but had “assailed
him from a distance”. In the same report, however, the police
then went on to recall that the District Public Prosecutor's Office
had urged them to explore the hate crime aspect of the attacks and
stated that the investigation would continue. More recently, the
police apparently questioned several known offenders, informants and
drug addicts, as well as a few of the applicant's neighbours, but
obtained no useful information.
II. RELEVANT DOMESTIC LAW
- Relevant
domestic provisions are contained in Articles 19, 20, 46, 61, 223,
235, 241, 242, 433 and 437 of the Code of Criminal Procedure (Zakonik
o krivičnom postupku, published in the Official Gazette of
the Federal Republic of Yugoslavia nos. 70/01 and 68/02, as well as
the Official Gazette of the Republic of Serbia – OG RS –
nos. 58/04, 85/05, 115/05, 46/06, 49/07, 122/08, 20/09 and 72/09) and
Article 317 § 2 of the Criminal Code (Krivični zakonik,
published in OG RS nos. 85/05, 88/05 and 107/05).
- In
accordance with these provisions, formal criminal proceedings can be
instituted at the request of an authorised prosecutor. In respect of
crimes subject to prosecution ex officio, such as the crime of
“incitement to ethnic, racial and religious hatred and
intolerance” perpetrated by means of ill-treatment, a felony
punishable by up to eight years' imprisonment, the authorised
prosecutor is the public prosecutor personally.
- The
public prosecutor's authority to decide whether to press charges,
however, is bound by the principle of legality which requires that he
must act whenever there is a reasonable suspicion that a crime
subject to prosecution ex officio has been committed. It makes
no difference whether the public prosecutor has learned of the
incident from a criminal complaint filed by the victim or another
person, or indeed even if he has only heard rumours to that effect.
- The
public prosecutor shall undertake measures necessary for the
preliminary investigation of the crimes subject to prosecution ex
officio and the identification of the alleged perpetrators. To
that end he is vested with the power to co-ordinate the work of
various law enforcement agencies and other government bodies.
- If
the public prosecutor finds, based on the evidence before him, that
there is a reasonable suspicion that a certain person has committed a
crime subject to prosecution ex officio, he will request the
competent court to institute a formal criminal procedure.
- If,
however, the public prosecutor decides that there is no basis for the
institution of such a procedure, he must inform the victim of this
decision, who shall then have the right to take over the prosecution
of the case on his or her own behalf, in the capacity of a
“subsidiary prosecutor”.
- There
is no time-limit within which the public prosecutor, following the
submission of a criminal complaint by the victim, must decide on
whether to bring formal criminal proceedings. Also, as regards crimes
punishable by more than five years' imprisonment, without a
prosecutorial decision to dismiss a criminal complaint filed by the
victim, the victim cannot personally take over the prosecution of the
case. In any event, neither a public prosecutor nor a victim acting
in the capacity of a subsidiary prosecutor may request the
institution of a formal criminal procedure in the absence of
information as to the identity of the alleged perpetrator.
- It
is noted, however, that domestic courts have held in the past that as
regards the crime of incitement to ethnic, racial or religious hatred
and intolerance society as a whole had to be deemed a victim, not the
aggrieved individual personally, meaning that the latter could only,
following a possible prosecutorial dismissal, take over the
prosecution of the case for another, lesser crime (opinion adopted at
the joint session of the Federal Court, the Supreme Courts, and the
Supreme Military Court of the Socialist Federal Republic of
Yugoslavia on 22 June 1989).
III. RELEVANT INTERNATIONAL FINDINGS AND OPINIONS
A. European Commission against Racism and Intolerance
(ECRI), Report on Serbia, CRI (2008) 25, adopted on 14 December 2007
and made public on 29 April 2008
- The
relevant paragraphs of this report read as follows:
“45. ECRI is concerned to note that ... there is a
climate of hostility against religious minorities [in Serbia]. This
climate is partly created by certain media outlets and politicians.
Members of these groups are also attacked, sometimes by members of
neo-Nazi or far-right groups, and their places of worship are
vandalised and/or deliberately set on fire. Despite a decrease in the
number of these attacks over the past few years, NGOs, some of which
have counted between 100 and 150 attacks per year, note that they
have become more violent. Religious communities appear reluctant to
report these attacks or talk about them publicly. This might be
because the police and the judicial apparatus do not always respond
appropriately to this problem. Religious communities deplore the fact
that few persons are brought to justice for perpetrating these acts
and that those found guilty are often only sentenced to a fine.
...
52. There is currently a certain climate of hostility in
Serbia against ... religious groups[,] which is fuelled by a number
of media outlets and politicians. Far-right groups also help to
generate negative feelings towards these communities ... NGOs condemn
a certain tendency on the authorities' part to downplay this climate
of intolerance against ... religious minorities and the fact that
they have taken few steps to remedy it.”
B. Views expressed by Forum 18
- Forum
18 is a Christian, Norwegian-Danish, charitable web and e-mail
initiative. It provides “original reporting and analysis on
violations of the freedom of thought, conscience and belief of all
people, whatever their religious affiliation, in an objective,
truthful and timely manner”.
1. Serbia: Violence continues against religious
communities (article published on 9 October 2007)
“... The
number of attacks on Serbia's religious communities appears to
continue to be declining ... However, the attacks themselves seem to
be becoming more violent and, as in previous years, members of
religious minorities are especially likely to be attacked. The police
continue to be apparently unwilling to protect members of religious
minorities or religious sites at risk of attack – even if they
have already been attacked. Members of religious minorities have in
the past year been beaten and stabbed, and places of worship have
been the targets of arson attacks. Places of worship of the Orthodox
Church have occasionally been robbed, but the vast majority of
attacks have been on ... religious minority individuals and property
...”
2. Serbia: Why won't the authorities stop religious
violence? (article published on 7 February 2008)
“Despite continuing attacks on religious
communities over a number of years, Forum 18 News Service has found
that Serbian authorities appear to be taking few steps to protect
their citizens. An extreme illustration of the unwillingness of the
authorities to provide justice to religious minority victims is the
case of Zivota Milanović, the only Hare Krishna devotee in
Jagodina ...”
3. Serbia: Religious freedom survey, February 2009
(survey published on 26 February 2009)
“...The most
serious problem affecting religion or belief in Serbia has been
violent attacks, along with the problem of the authorities having
shown a lack of willingness to catch and convict the attackers.
However, annual surveys by Forum 18 News Service have shown that the
numbers of attacks are declining, with fewer attacks in 2007 and 2008
compared to previous years. Serbia's desire to join the European
Union, along with politicians placing greater weight on Serbia
becoming a more open country, appears to be influencing popular
attitudes, and hence the possibility of attacks. Many of the attacks
and threats against 'non-traditional' religious communities appear to
be by extreme nationalists who think that the communities are in some
sense traitors to the nation ... There is a lack of consistency in
whether attackers are arrested and court proceedings brought against
them. The 2006 Serbian Constitution guarantees freedom of religion,
and bars the fomenting of religious intolerance and hatred. However,
members of religious minorities have told Forum 18 that these ideals
have yet to become reality in their daily experience.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- Under
Article 3 of the Convention, the applicant complained about the
respondent State's failure to prevent the repeated attacks against
him, as well as its unwillingness to conduct a proper investigation
into these incidents. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government maintained that the application could be deemed
incompatible with the provisions of the Convention ratione
temporis in so far as it concerned events which had taken place
prior to the Serbian ratification of the Convention on 3 March 2004.
However, they then went on to acknowledge that the events of 2001
might indeed provide for an important context concerning the attacks
which had occurred thereafter.
- The
applicant argued that his complaints were compatible with the
provisions of the Convention ratione temporis.
- The Court observes that, in accordance with the
generally accepted principles of international law, a Contracting
Party is only bound by the Convention in respect of events occurring
after its entry into force. It further notes that Serbia ratified the
Convention on 3 March 2004 and that some of the events referred to in
the application in the present case had indeed taken place before
that date. The Court therefore has jurisdiction ratione temporis
to examine the applicant's complaints only in so far as they concern
events as of 3 March 2004. It shall nevertheless, for reasons of
context and whilst examining the situation complained of as a whole
(see, mutatis mutandis, Šobota-Gajić v. Bosnia and
Herzegovina, no. 27966/06, § 45, 6 November 2007), also take
into account any and all relevant events prior to that date (see,
mutatis mutandis, Salontaji-Drobnjak v.
Serbia, no. 36500/05, §
110, 13 October 2009). Consequently, the Government's objection must
be dismissed.
- The
Court notes that the applicant's complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant re-affirmed his complaints. He added that many years after
the attacks the perpetrators have yet to be identified, whilst the
police themselves would still appear to entertain the idea that his
injuries may have been self-inflicted. There was also very poor
co-ordination between the public prosecutor and the police, and the
applicant was not kept informed of the course of the investigation.
Further, the police mostly spent their time looking for and
re-interviewing the applicant despite having already questioned him
earlier and, in a similarly pointless exercise, canvassed the
applicant's neighbours, as well as the taxi driver, even though these
persons clearly had no useful information to offer. Lastly, the
applicant pointed out that the competent domestic authorities had
taken no substantive steps since January 2009.
- The
Government contested the applicant's allegations. They maintained at
the outset that the abuse to which the applicant had been exposed had
not attained the minimum level of severity required for the
application of Article 3. In any event, Serbian prosecuting and
law-enforcement authorities had done everything in their power to
fully investigate the attacks and identify the perpetrators. Numerous
potential witnesses had been heard, expert medical assistance had
been obtained, all available leads had been explored, and one police
officer had even been disciplined. The applicant's own position,
however, seemed ambivalent and his demeanour less than co-operative.
In particular, he had been difficult to contact and had not reported
the attacks in a timely manner. The applicant had also failed to
request that his telephone line be monitored following the threats
received in 2001, which could have been useful for identification
purposes and led to a conviction. Further, the applicant's
descriptions of his attackers had been vague, there had been no
eyewitnesses, and the applicant had never remained in Jagodina after
the attacks, thus precluding a timely on-site investigation in his
presence. Finally, the Government submitted that no material traces
of the attacks, apart from the injuries sustained by the applicant,
had ever been found and provided the Court with several final
domestic judgments, in unrelated incidents, arguing that the Serbian
judiciary had been perfectly willing to convict individuals of hate
crimes whenever the available evidence had so warranted.
2. Relevant principles
- The
Court reiterates that Article 3 of the Convention must be regarded as
one of the most fundamental provisions of the Convention and as
enshrining core values of the democratic societies making up the
Council of Europe (see Pretty v. the United Kingdom, no.
2346/02, § 49, ECHR 2002-III). In contrast to the other
provisions in the Convention, it is cast in absolute terms, without
exception or proviso, or the possibility of derogation under Article
15 of the Convention (see, inter alia, Chahal v. the United
Kingdom, judgment of 15 November 1996, § 79, Reports
of Judgments and Decisions 1996-V).
- In
general, actions incompatible with Article 3 of the Convention
primarily incur the liability of a Contracting State if they were
inflicted by persons holding an official position. However, the
obligation on the High Contracting Parties under Article 1 of the
Convention to secure to everyone within their jurisdiction the rights
and freedoms defined in the Convention, taken in conjunction with
Article 3, also requires States to take measures designed to ensure
that individuals within their jurisdiction are not subjected to
ill-treatment administered by other private persons (see A. v. the
United Kingdom, judgment of 23 September 1998, § 22, Reports
of Judgments and Decisions 1998-VI; Z and Others v. the United
Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V; E.
and Others v. the United Kingdom, no. 33218/96, 26 November
2002).
- 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 scope of this
positive obligation must, however, be interpreted in a way which does
not impose an impossible or disproportionate burden on the
authorities. Not every claimed risk of ill-treatment, thus, can
entail for the authorities a Convention requirement to take
operational measures to prevent that risk from materialising. For
a positive obligation to arise, it must be established that the
authorities knew or ought to have known at the time of the existence
of a real and immediate risk of ill-treatment 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.
Another relevant consideration is the need to ensure that the police
exercise their powers to control and prevent crime in a manner which
fully respects the due process and other guarantees which
legitimately place restraints on the scope of their action to
investigate crime and bring offenders to justice, including the
guarantees contained in Articles 5 and 8 of the Convention (see
Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no.
13178/03, § 53, 12 October 2006; and Members (97) of the
Gldani Congregation of Jehovah's Witnesses v. Georgia, no.
71156/01, § 96, ECHR 2007 V; see also, mutatis mutandis,
Osman v. the United Kingdom, 28 October 1998, § 116,
Reports of Judgments and Decisions 1998 VIII).
- The
Court further recalls that where an individual raises an arguable
claim that he has been seriously ill-treated in breach of Article 3,
that provision, read in conjunction with Article 1 of the
Convention, requires by implication that there should also be an
effective official investigation capable of leading to the
identification and punishment of those responsible (see Assenov
and Others v. Bulgaria, 28 October 1998, § 102, Reports
of Judgments and Decisions 1998 VIII). A positive obligation
of this sort cannot, in principle, be considered to be limited solely
to cases of ill-treatment by State agents (see M.C. v. Bulgaria,
no. 39272/98, § 151, ECHR 2003-XII; Šečić
v. Croatia, no. 40116/02, § 53, ECHR 2007 VI).
- Lastly,
the scope of the above obligation is one of means, not of result; the
authorities must have taken all reasonable steps available to them to
secure the evidence concerning the incident (see, mutatis
mutandis, Menson v. the United Kingdom (dec.), no.
47916/99, ECHR 2003-V). A requirement of promptness and reasonable
expedition of the investigation is implicit in this context (see,
mutatis mutandis, Yaşa v. Turkey, judgment of 2
September 1998, Reports 1998-VI, p. 2439, §§
102-104) since a prompt response by the authorities may generally be
regarded as essential in maintaining public confidence in their
maintenance of the rule of law and in preventing any appearance of
collusion in or tolerance of unlawful acts (see Batı and
Others v. Turkey, nos. 33097/96 and 57834/00, § 136,
ECHR 2004-IV (extracts); Abdülsamet Yaman v. Turkey, no.
32446/96, § 60, 2 November 2004; and, mutatis mutandis,
Paul and Audrey Edwards v. the United Kingdom, no. 46477/99,
§ 72, ECHR 2002-II).
3. The Court's assessment
- Turning
to the present case, the Court considers that the injuries suffered
by the applicant, consisting mostly of numerous cuts, combined with
his feelings of fear and helplessness, were sufficiently serious to
amount to ill-treatment within the meaning of Article 3 of the
Convention (see Price v. the United Kingdom, no. 33394/96, §
24, ECHR 2001-VII).
- The
Court further notes that to date, many years after the attacks, the
last one having occurred in 2007, the perpetrators thereof have yet
to be identified and brought to justice. In this context, the
applicant would appear not to have been properly kept abreast of the
course of the investigation or afforded an opportunity to personally
see and possibly identify his attackers from among a number of
witnesses and/or suspects questioned by the police (see, for example,
paragraphs 60 and 61 above). At the same time, the police considered
that the applicant's injuries may have been self-inflicted (see
paragraph 64 above), even though there was no medical or other
meaningful evidence, indeed anything but pure conjecture, to that
effect. The co-operation between the police and the public
prosecution service also left a lot to be desired (see paragraphs 55
and 56 above), and the entire investigation seems to have been
focused on Jagodina despite the fact that the suspected far-right
organisations were known for operating throughout the country (see
paragraphs 24 and 63 above). Indeed, according to the information
contained in the case file, the applicant's statement indicating that
one of his attackers may have been a member of an organisation called
Srpski narodni pokret 1389 (see paragraph 57 above) does not
seem to have been followed up at all.
- Finally,
as of July 2005, at the latest, it should have been obvious to the
police that the applicant, who was a member of a vulnerable religious
minority (see, mutatis mutandis, Okkali v. Turkey, no.
52067/99, § 70, ECHR 2006 XII (extracts)), was being
systematically targeted and that future attacks were very likely to
follow, particularly in June or July of each year in advance of or
shortly after a major religious holiday (see paragraph 64 above).
Yet, nothing was done to prevent such attacks on another two
occasions. No video or other surveillance was ever put in place in
the vicinity of the flat where the incidents had occurred, no police
stakeout seems to have even been contemplated, and the applicant was
never offered protection by a special security detail which might
have deterred his future assailants.
- In
view of the foregoing and while the respondent State's authorities
took many steps and encountered significant objective difficulties,
including the applicant's somewhat vague descriptions of the
attackers as well as the apparent lack of eyewitnesses, the Court
considers that they did not take all reasonable measures to conduct
an adequate investigation. They have also failed to take any
reasonable and effective steps in order to prevent the applicant's
repeated ill-treatment, notwithstanding the fact that the continuing
risk thereof was real, immediate and predictable.
- In
such circumstances, the Court cannot but find that there has been a
breach of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH
ARTICLE 3 OF THE CONVENTION
- Under
Article 14 of the Convention, taken together with Article 3, the
applicant further complained that the respondent State's failure to
properly investigate the attacks against him was due to his religious
affiliation. Article 14 reads as follows:
“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.”
A. Admissibility
- The
Court notes that this complaint is linked to that examined above and
must therefore likewise be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant re-affirmed his complaint, adding that it was clear that
the police had considered him “strange”, uncooperative
and even anti-social merely because of his religion. Apart from the
questioning of a group of skinheads in 2001, the respondent State's
authorities seemed more interested in discussing the “suspicious”
nature of the Hare Krishna community rather than in uncovering the
religious aspect of the attacks in question.
- The
Government maintained that the applicant had offered no evidence to
the effect that there had been a violation of Article 14 of the
Convention. The official investigation into the attacks against the
applicant had been impartial and all allegations of religious
motivation behind these incidents had been thoroughly checked by the
competent domestic authorities. Further, no attacks against any other
member of the Hare Krishna community in Jagodina had ever been
reported, and any police interest in this community would have been
perfectly reasonable given the alleged motivation of the applicant's
assailants.
2. The Court's assessment
- The
Court considers that, just like in respect of racially motivated
attacks, when investigating violent incidents State authorities have
the additional duty to take all reasonable steps to unmask any
religious motive and to establish whether or not religious hatred or
prejudice may have played a role in the events. Admittedly, proving
such motivation may be difficult in practice. The respondent State's
obligation to investigate possible religious overtones to a violent
act is thus an obligation to use best endeavours and is not absolute;
the authorities must do what is reasonable in the circumstances of
the case (see, mutatis mutandis, Nachova and Others v.
Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR
2005 VII; and Members (97) of the Gldani Congregation
of Jehovah's Witnesses v. Georgia, cited above, §§
138-142).
- The
Court considers that the foregoing is also necessarily true in cases
where the treatment contrary to Article 3 of the Convention is
inflicted by private individuals. Treating religiously motivated
violence and brutality on an equal footing with cases that have no
such overtones would be turning a blind eye to the specific nature of
acts that are particularly destructive of fundamental rights. A
failure to make a distinction in the way in which situations that are
essentially different are handled may constitute unjustified
treatment irreconcilable with Article 14 of the Convention (ibid.;
see also, mutatis mutandis, Šečić v.
Croatia, cited above, § 67).
- In
the present case it is suspected that the applicant's attackers
belonged to one or several far-right organisations which, by their
very nature, were governed by an extremist ideology.
- The
Court further considers it unacceptable that, being aware that the
attacks in question had most probably been motivated by religious
hatred, the respondent State's authorities allowed the investigation
to last for many years without taking adequate action with a view to
identifying or prosecuting the perpetrators (see paragraphs 87-91
above).
- Finally,
though perhaps most importantly, it is noted that the police
themselves referred to the applicant's well-known religious beliefs,
as well as his “strange appearance”, and apparently
attached particular significance to “the fact” that most
of the attacks against him had been reported before or after a major
orthodox religious holiday, which incidents the applicant
subsequently publicised through the mass media in the context of his
own religious affiliation (see paragraphs 22 and 64 above). The Court
considers, once again, that such views alone imply that the police
had serious doubts, related to the applicant's religion, as to
whether he was a genuine victim, notwithstanding that there was no
evidence to warrant doubts of this sort. It follows that even though
the authorities had explored several leads proposed by the applicant
concerning the underlying motivation of his attackers these steps
amounted to little more than a pro forma investigation.
- In
view of the above, the Court considers that there has been a
violation of Article 14 taken in conjunction with Article 3 of the
Convention.
III. OTHER ALLEGED VIOLATIONS
- Lastly,
under Articles 2 and 13 of the Convention, the applicant essentially
repeated his complaints already made under Article 3 thereof (see
paragraph 75 above).
- Having
regard to its findings under the latter provision (see paragraphs
87-91 above), the Court considers that it is not necessary to examine
separately the admissibility or the merits of the applicant's
identical complaints made under Articles 2 and 13.
IV. 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 contested this claim.
- The
Court considers that the applicant has suffered non-pecuniary damage
which cannot be sufficiently compensated by its mere finding of a
violation of the Convention. Having regard to the character of the
violations found in the present case and making its assessment on an
equitable basis, the Court therefore awards the applicant EUR 10,000
under this head.
B. Costs and expenses
- The
applicant also claimed EUR 1,200 for the costs and expenses incurred
before the Court.
- The
Government contested this claim.
- 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 have been actually and necessarily
incurred and were also reasonable as to their quantum. In the present
case, regard being had to the documents in its possession and the
above criteria, the Court considers it reasonable to award in full
the sum sought by the applicant for the proceedings before it.
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
- Declares unanimously the complaints under
Articles 3 and 14 of the Convention admissible;
- Holds unanimously that there has been a
violation of Article 3 of the Convention;
- Holds by 6 votes to 1 that there has also been a
violation of Article 14 taken in conjunction with Article 3 of the
Convention;
- Holds unanimously that it is not necessary to
examine separately the complaints under Articles 2 and 13 of the
Convention;
- Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final, in accordance with
Article 44 § 2 of the Convention, the following
sums, to be converted into the national currency of the respondent
State at the rate applicable on the date of settlement:
(i)
EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable,
(ii)
EUR 1,200 (one thousand two hundred euros) in respect of costs and
expenses, plus any tax that may be chargeable to the applicant;
(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 unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 14 December 2010,
pursuant to Rule 77 § 2 and 3 of the Rules of Court.
Stanley Naismith Françoise
Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge
Raimondi is annexed to this judgment.
F.T.
S.H.N.
PARTIALLY DISSENTING OPINION OF JUDGE RAIMONDI
I
agree with the majority that in this case there has been a breach of
Article 3 of the Convention, and that no separate issue arises from
the complaints submitted under Articles 2 and 13 of the Convention,
but I cannot join the further conclusion that a distinct violation of
the same Article 3 in conjunction with Article 14 of the Convention
is to be found.
My
position is linked to the reasons leading me to find a violation of
Article 3. In fact, these reasons do not correspond entirely to those
of the majority.
Like
the majority, I consider that the injuries suffered by the applicant,
consisting mostly of numerous cuts, combined with his feelings of
fear and helplessness, were sufficiently serious to amount to
ill-treatment within the meaning of Article 3 of the Convention.
I
also consider with the majority that credible allegations of repeated
criminal attacks were made by the applicant, whose physical integrity
had been seriously put in danger, and that the response of the
authorities did not reach the level of adequateness of the
investigation required by the jurisprudence of the Court.
In
fact, the same authorities of the concerned High Contracting Party
admitted that the police had not acted with the necessary diligence
(see paragraph 53 of the judgment).
I do
not agree, however, with the majority that the activities of the
police amounted to “little more than a pro forma
investigation”. In my view on all the relevant occasions (in
2001, 2005, 2006 an 2007), the police made serious attempts to
investigate the allegations made by the applicant, even though these
attempts did not reach the required level of promptness and
reasonable expedition. As the majority recognizes “the
respondent State's authorities took many steps and encountered
significant objective difficulties, including the applicant's
somewhat vague descriptions of the attackers as well as the apparent
lack of eyewitnesses” (paragraph 90 of the judgment).
I do
not concur, furthermore, with the criticism expressed by the majority
on the fact that “no video or other surveillance was ever put
in place in the vicinity of the flat where the incidents had
occurred, no police stakeout seems to have even been contemplated,
and the applicant was never offered protection by a special security
detail which might have deterred his future assailants”
(paragraph 89 of the judgment). In my view imposing these measures
would result in a disproportionate burden for the authorities.
To
me, the fact that the police considered the possibility that the
applicant's injuries may have been self-inflicted (see paragraphs 64
and 88 of the judgment) does not necessarily show a discriminatory
attitude of the authorities.
The
police took into account the alleged religiously motivated nature of
the attacks. With the respondent Government, I find that the
allegations of religious motivation behind the relevant incidents
have been checked. In particular in 2005 they apparently visited
several locations in an attempt to “identify” the
organisation called “Srpski vitezovi” which,
according to the applicant, was responsible for the attacks.
For
these reasons, I do not find a separate violation of Article 3
combined with Article 14 of the Convention.
