In the case of Đorđević v. Croatia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
AnatolyKovler, President,
NinaVajić,
PeerLorenzen,
ElisabethSteiner,
KhanlarHajiyev,
Linos-AlexandreSicilianos,
ErikMøse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 3 July 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
41526/10) 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 two Croatian nationals, Mr Dalibor
Đorđević and Ms Radmila Đorđević (“the
applicants”), on 12 July 2010.
The applicants, who were granted legal aid, were
represented by Ms I. Bojić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š.
Stažnik.
On 10 September 2010 the President of the First
Section decided to give notice of the application to the Government. It was
also decided to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
The applicants and the Government each filed
observations on the admissibility and merits of the case. In addition,
third-party comments were received from the European Disability Forum, which
had been given leave to intervene in the written procedure (Article 36 § 2 of
the Convention and Rule 44 § 3). The respondent Government replied to those
comments (Rule 44 § 6).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1977 and 1956
respectively and live in Zagreb.
The first applicant is a person divested of legal
capacity owing to his mental and physical retardation. He goes to a workshop
for adults at the V.B.Primary School in Zagreb for twelve hours a week. He is
taken care of by his mother, the second applicant. The medical documentation of
16 June 2008 submitted in respect of the first applicant describes his health
as follows:
“... in his very early childhood he suffered from purulent
meningitis, which resulted in permanent consequences and epilepsy. He is
retarded in his mental and physical development and is under the constant
supervision of a neurologist and psychiatrist. Owing to hydrocephalus he has
had a Pudenz valve [a type of cerebrospinal fluid shunt] implanted. ... his
eyesight is very poor ... and he is dependent on his mother as regards feeding,
dressing, personal hygiene and moving about. His spine is mobile but painful in
the lower region. ... he suffers from severe foot deformation, ... has
difficulty walking; walking on his toes and heels is not possible. Mentally he
is emotionally distant, fearful and has a poor vocabulary. ...”
The applicants live in a ground-floor flat in an
apartment building in Špansko, a part of Zagreb. The A.K.Primary School is in
their near neighbourhood.
It appears that the applicants had been harassed between
July 2008 and February 2011. They allege that pupils from the A.K. Primary
School, all minors, frequently harass them, and in particular the first
applicant, at all times of the day, especially when the pupils return home from
school in groups and in the late afternoon and evening when they gather without
parental supervision on and around a wooden bench in front of the balcony of
the applicants’ flat. The harassment has lasted for about four years and is
motivated by the first applicant’s health and both applicants’ Serbian origin.
A larger group of children, also minors, come daily to a park in front of the
applicants’ flat, shout obscenities at the first applicant and call him names
and write insulting messages on the pavement. The children often ring the
applicants’ bell, asking when the first applicant is going out. They often spit
at the first applicant.
A police report of 31 July 2008 shows that the
second applicant called the police at 9.12 p.m. and complained that unknown
young persons were harassing her son and had demolished some objects on her
balcony. The police arrived at the applicants’ home at 9.30 p.m. and the second
applicant told them that at about 6 p.m. she and the first applicant had left
the flat and that when they had returned at about 9 p.m. she had found the
balcony ruined and all the flower beds torn up. She also told the police that
the first applicant had been harassed for a longer period of time by children
in the neighbourhood on account of his mental retardation. She named two of the
children.
On 2 March 2009 the Susedgrad Social Welfare
Centre ordered the supervision of the parental care of D.K., a pupil of the
A.K. Primary School in Zagreb, on account of his poor school results,
problematic behaviour and tendency to commit criminal offences. There was no
mention of his involvement in the harassment of the applicants.
A medical report drawn up on 6 April 2009 shows
that the first applicant had been psychologically and physically harassed in
the street and that he had cigarette burns on both hands. The doctor asked the
social authorities to institute proceedings for the protection of the first
applicant as a person with serious mental disorders and described him as a
peaceful and benign person who could not and did not know how to defend himself
from the abusers.
In a letter sent on 20 April 2009 to the
Ombudswoman for Persons with Disabilities, the second applicant complained that
on 4 April 2009 two children, D.K. and I.M., had harassed the first applicant.
She alleged that while riding their bicycles they had approached the first
applicant and burned his hands with cigarettes. She also complained that the
first applicant had been continually harassed by children attending a nearby
school on the basis of his mental retardation and that the second applicant had
on numerous occasions complained to the Susedgrad Social Welfare Centre and the
authorities of the A.K.Primary School, but to no avail.
On the same day the applicants’ lawyer
complained to the police about the incident of 4 April 2009.
A police report of 5 May 2009 shows that on that
day on the premises of the II Zagreb Police Station the police interviewed
D.K., born in 1997, and P.B., born in 1995. The relevant part of the report in
respect of D.K. reads:
“When asked whether he remembers the event of 4 April 2009 in ...
Zagreb, [D.K.] says that at about noon he was there with his friend I.M., who
is in the seventh grade at A.K. Primary School, and that P.B., an older boy
from the seventh grade of the same school, arrived together with two men,
unknown to him, who were playing with a ball. A person who is disabled and has
had problems from birth and who lives in an apartment building in ... Street
was playing between the buildings. At one moment P.B. lit a cigarette,
approached Dalibor and burned his right hands several times, after which they
all ran away because that person started to shout.”
The relevant part of the report in respect of P.B. reads:
“When asked whether he remembers the event of 4 April 2009 in ...
Zagreb, concerning the harassment of a disabled person, Dalibor
Đorđević, [P.B.] says that he was not present on that occasion
but that at the beginning of that week during the morning break he met D.K.,
who is in the fifth grade at the same school and who told him that he [D.K.]
and I.M. at about noon on Saturday had burned a cigarette on the hand of a
person named Dalibor in ... Street who lives on that street and is disabled.
When asked a further question as to whether he knows what that
person looks like, he answers that he used to go to play on that street with
other boys from the neighbourhood and he saw that person, who is about thirty,
strongly built, has short salt-and-pepper hair, a lighter complexion and has
difficulty speaking. That person plays with other children who tease him and he
runs after them and beats them.”
A police report of 7 May 2009 shows that on that
day on the premises of the II Zagreb Police Station the police interviewed
I.M., born in 1994. The relevant part of the report reads:
“When asked whether he remembers the event of 4 April 2009 in ...
Zagreb, concerning the harassment of a disabled person, Dalibor
Đorđević, between thirty and forty years old, [I.M.] says that
he remembers that occasion, that it was a Saturday ... and that he took his
bicycle and went ... with D.K. to ... Street, where they saw Dalibor, a person
disabled from birth, between the buildings, playing with a ball with some
children who took the ball and did not want to return it to him. When he saw
this, he [I.M.] asked the children why they didn’t give the ball back to
Dalibor, and Dalibor started to shout and wave his hands. The children then
threw the ball and he took it. He [I.M.] was holding a cigarette in his left
hand ... and as he was passing Dalibor on his bicycle he [Dalibor] started to
wave his hands and slapped him a few times on the hand in which he was holding
the cigarette and thus Dalibor burned his hand. He is sure that he burned
Dalibor only once and he is sorry for that. He does not understand why Dalibor
reacted in such a manner because it was not his [I.M.’s] fault that some
children took his ball. The pupil P.B. was not with them.
...
When asked a further question as to whether Dalibor had
problems with other children, [I.M.] answers that he is often on that street
where Dalibor plays ball with other boys and that these children tease Dalibor
because of his illness ... and then he runs after them and catches them.
In the end [I.M.’s] mother R. was advised to pay attention to
I.M.’s behaviour. She said that she had no problems with him and she did not
know why he had done this.”
On 19 May 2009 the II Zagreb Police Station sent
a report to the Zagreb State Attorney’s Juvenile Office stating that:
- on 16 April 2009 they had received a letter from the
Susedgrad Social Welfare Centre stating that it had received a letter from the
second applicant in which she had alleged that her son had been ill-treated by
D.K. and others and enclosed medical documentation;
- on 30 April 2009 they had received a letter from the
Ombudswoman for Persons with Disabilities stating that she had also received a
letter from the second applicant who had sought help in connection with the
frequent harassment of the first applicant.
The police also informed the Zagreb State Attorney’s Juvenile
Office about the interviews they had conducted with the children D.K., I.M. and
P.B.
In a letter of 20 May 2009 the II Zagreb Police
Station informed the Ombudswoman that they had interviewed the children I.M.
and D.K., that they had contacted the headmaster of the A.K.Primary School,
that the police officers from the station had been informed about the problems
and that they had regularly patrolled the streets in question.
On 17 July 2009 the police informed the
Susedgrad Welfare Centre that they had established that on 4 April 2009 at
about noon the first applicant had been playing with a ball in the street with
some boys from the neighbourhood who had taken his ball away, which had upset
him. When the boys I.M. and D.K. had gone past the first applicant he had waved
his hands and I.M. had unintentionally burned his hands.
On 16 July 2009 the Susedgrad Welfare Centre
drew up a report on the first applicant. The relevant part of the report reads:
“ ...
On 6 August 2008 [the first applicant’s] mother Radmila
complained to us about harassment of Dalibor, alleging that the children ...
were visiting the girls V.K. and I.K., who lived in their apartment building.
The K. girls said that they had not harassed Dalibor and that the leader of the
group had been H.B.
An agreement has been reached with the K. girls and their mother
J.F. that the girls would cease to gather in front of the apartment building
and would find another place to do so in order to avoid conflicts.
H. and her parents were summoned to this office. H. said that
she would no longer come in front of that apartment building and there had been
peace for a time.
After that the boys started to come, different groups, so that
Mrs Đorđević could not tell their names, but she knew that they
attended A.K.Primary School.
Mrs Đorđević again complained about harassment
on 8 April 2009 when Dalibor had been burned with cigarettes and [she said
that] the harassment had continued.
On 17 June 2009 an interview with Mrs Đorđević
was carried out. [She said] that the problems had continued. There were constantly
some new children who provoked Dalibor, mostly acquainted with the K. girls.
There would be peace for two or three days and then the problems would start
again. She had good relations with the school counsellor, the defectologist and
the headmaster.
The statement by Mrs Đorđević: ‘On 16 June 2009
first the girls came and stood next to the bench. Mrs Đorđević
invited Dalibor inside because she knew how much he was afraid of them. They
said that he did not need to be afraid because they would soon leave. Then a
group of boys came and showered Dalibor with water from a balloon.’
Mrs Đorđević also said that lately V.K. had
again started to gather children in front of the building, which upset Dalibor.
The police and the school were informed about the above events.
The school [authorities] talked to all the children who had
been reported and to their parents.
The police carried out an inquiry [and interviewed] the
children who had been present when Dalibor was burned.
In order to prevent further harassment we wrote to the school
[authorities asking them] to hold meetings with all children and parents at the
beginning of the school year, in all classes, to inform everyone of the problem
and to make it clear that they were all responsible for the ill-treatment until
the perpetrators were identified. It was also suggested that lectures and
workshops with children be held in order for them to understand that there were
persons with disabilities who had the same rights as others – to walk about and
live outside their flats without being harassed by anyone.
With police officer I.M. from the II Police Station it was
agreed that the police in charge of that neighbourhood would pay more attention
and patrol the street more frequently in order to identify the perpetrators of
harassment.
On 14 July 2009 a visit of the family was carried out and only
Dalibor was found; he did not know where his mother was and also said that the
children had not teased him lately. Dalibor was in the flat and there were not
any children around the building.
...”
On 27 July 2009 the Zagreb Municipality State
Attorney’s Office informed the second applicant that the perpetrators of the
criminal offence of violent behaviour under Article 331 § 1 of the Criminal
Code were D.K. and I.M., who were children below fourteen years of age, and
that therefore no criminal proceedings could be instituted against them. The
second applicant was instructed that she could bring a claim for compensation
for damage in civil proceedings.
A police report of 5 September 2009 shows that
on that day the second applicant called the police at 8.40 p.m. complaining
about noise in the park. When the police arrived at 8.45, the second applicant
told them that in the meantime the children had left.
A medical report in respect of the first
applicant drawn up on 8 September 2009 indicates that he had constantly
been harassed by children, who had burned his hands, had shouted at him and
made noise in front of the applicants’ balcony. It was indicated that it was
necessary for the first applicant to spend time outdoors.
A report drawn up on 17 September 2009 by the
Susedgrad Social Welfare Centre indicates that it had interviewed I.M. and his
mother. Since I.M. expressed regret about the incident of 4 April 2009, there
was no need for any further measures.
On an unspecified date in September 2009 the
headmaster of the A.K.Primary School sent a letter to the parents informing
them that in their neighbourhood there lived Dalibor, a young man with
disabilities who had been frequently harassed by schoolchildren. He expressly
stated that the children had admitted to “a number of brutal acts” against him,
such as making derogatory remarks, using insulting language and swearing,
provocative behaviour, taking his ball and burning his hands with cigarettes.
The parents were asked to talk to their children and warn them about possible
consequences of such behaviour.
The relevant part of the written record of a
parent-teacher meeting held on 30 September 2009 at the A.K.Primary School
reads as follows:
“...
At all parent-teacher meetings in the new school year we have
drawn the parents’ attention to a young man with special needs who lives in the
school’s neighbourhood and who has been harassed by pupils from our school,
mostly verbally and sometimes physically. His mother often seeks help from the
school employees, and a social welfare centre and the Ombudswoman for Persons
with Disabilities have also been involved. The parents were asked to talk to
their children and raise their awareness about the problem of accepting
differences and the need for peaceful coexistence.
The parents present commented on the matter. Some of them
mentioned that the young man in question had sometimes also been aggressive,
that he had approached young girls in an inappropriate manner and that they had
expressed a fear of him and tended to avoid the space where he usually was.
Some also commented that he should not be out in public and that he should
spend time in conditions appropriate for him or in the park under the constant
supervision of a guardian. The headmaster noted all the comments and promised
to contact the competent social welfare centre.
...”
On 1 October 2009 the applicants’ lawyer sent a
written complaint to the Zagreb Municipality State Attorney’s Office. She
stated that her clients were two Croatian nationals of Serbian origin, a mother
and her son who suffered from mental and physical retardation. She explained that
her clients lived about seventy metres away from the A.K. Primary School and
that they had been constantly harassed by schoolchildren, at all times of the
day and mostly when the children returned from school in groups, late in the
afternoon and in the evening when they gathered around a bench in front of the
applicants’ balcony without parental supervision. She alleged that the
harassment had already been going on for about four years and was motivated by
the applicants’ Serbian origin and the first applicant’s disability. A group of
children aged from ten to fourteen had been coming daily in front of the
apartment building where the applicants lived, shouting insults and obscenities
and calling them names. They also wrote insulting remarks on the pavement in
front of the building.
The lawyer further described the incident of 4 April 2009.
Relying on Articles 8 and 13 of the Convention, she complained that there was
no effective remedy in the Croatian legal system for protection from violent
acts by children.
She also described events of 5 and 7 September 2009, when a
group of children had insulted the first applicant and, on the latter date, had
taken a ball from him. On 10 September 2009 a group of boys had urinated in
front of the applicants’ door. On 14 September 2009 about fourteen pupils from
the fourth and fifth grades had pushed the first applicant, insulted him and
taken a ball from him. The day afterwards a boy had shouted insults at him.
She also alleged that on at least ten different occasions the
children had physically attacked the first applicant and had often spat at him.
On 31 July 2008 the children had ruined the applicants’ balcony by tearing out
all the flower beds and by throwing stones and mud onto the balcony. A few days
later they had thrown a carton of chocolate milk onto the balcony.
The second applicant had reported the harassment to the social
services, the police, the Ombudswoman for Persons with Disabilities and the
school authorities. Despite the good will of all those concerned, the
harassment of the applicants had continued.
A medical report in respect of the first
applicant drawn up on 7 October 2009 indicates that he had constantly been
harassed by children.
A medical report in respect of the first
applicant drawn up on 9 November 2009 indicates that he had been attacked
by children a few days before, which had strongly upset him. Psychotherapy was
recommended.
A medical report in respect of the first
applicant drawn up on 14 December 2009 indicates that “everyone hit him
with snowballs without mercy”, which had scared him.
A medical report in respect of the first
applicant drawn up on 14 January 2010 indicates that the first applicant
suffered from constant anxiety and a feeling of being persecuted because
“nothing has been done to resolve his situation”.
A police report of 19 March 2010 indicates that
the second applicant called the police that day at 9.18 p.m. because of
“problems with children”. When the police arrived at 9.25 p.m. the second
applicant told them that the children had been playing with a ball in the park
and had then hit her window with the ball and run away.
A medical report in respect of the first
applicant drawn up on 11 April 2010 indicates that the first applicant was
attacked by a group of children and was hit by a ball on the nose.
The applicants allege that on 13 May 2010 a
group of children, including a boy, P., pushed the first applicant against an
iron fence in the park. He fell and hit his head and right leg. He was
disoriented and uncommunicative for three days. The medical documentation of
the same day shows that the first applicant suffered from swelling in his right
leg and skin abrasion on the left side of his forehead. He was unable to walk
for five days and the second applicant had to borrow a wheelchair for him. The
medical report also indicates that the first applicant had stepped in the wrong
place and sprained his ankle and had also hit his head.
On 14 May 2010 the second applicant complained
to the police that on 13 May 2010 a boy, P.B., had pushed the first applicant
against a wall and had also taken his ball.
On 20 May 2010 the applicants’ lawyer wrote to
the Zagreb Municipality State Attorney’s Office complaining that since her last
letter of September 2009, there had been further incidents of violence and
harassment against the applicants. The relevant part of the letter reads:
“...
On 5 November 2009 two boys, one of whom was P., verbally
abused the first applicant, which scared him.
The second applicant informed the school counsellor about the
incident but has not received a reply.
On 14, 18 and 21 December 2009 a group of children threw snow
at the applicants’ window and on one of those occasions covered their balcony
with snow.
On 15 December 2009 a group of children verbally insulted the
first applicant in the street. On 22 February 2010 the second applicant was
called by a social worker from the Susedgrad Social Welfare Centre, J.S., who
told her that the only way to resolve the situation was to bring a civil
action.
On 19 March 2010 the children kept throwing a ball at the
applicants’ windows, about which the police were informed. On 20 March 2010,
while the first applicant was riding on a bus, a group of children shouted his
name, which upset him.
On 10 April 2009 a boy whose first name was R. hit the first
applicant on the nose with a ball, which disoriented him and caused him pain.
The second applicant informed the police about it. The police conducted a
two-hour interview with her and expressed their regret but informed the second
applicant that nothing could be done because any kind of inquiry would show
that the children had only been joking.
On 13 May 2010 a group of children, including P., pushed the
first applicant against an iron fence in the park. He fell and hit his head and
right leg. He was disoriented and uncommunicative for three days.
On 18 May 2010, when the first applicant was sitting on a
swing, a group of children approached him and made obscene gestures and told
him that he was stupid.”
On the same day the lawyer complained about the
harassment of the applicants to the Ombudswoman for Children and asked for
advice.
The applicants allege that on 24 May 2010 a
group of boys hit the first applicant’s head against the iron fence in the park
and said that they enjoyed it. A medical report in respect of the first
applicant drawn up on the same day indicates that he had been pushed against an
iron fence and had hit his head on it.
On 25 May 2010 the Zagreb Municipality State
Attorney’s Office informed the applicants’ lawyer that it had no jurisdiction
in the matter since the complaints concerned children who were not criminally
responsible.
On 26 May 2010 the headmaster of the A.K.Primary School informed the applicants’ lawyer that the school authorities had taken all
measures they deemed appropriate, such as discussion with the pupils concerned
and the provision of information to all parents at parent-teacher meetings
about the problems the applicants had encountered with the pupils.
On 31 May 2010 the Ombudswoman for Children
informed the applicants’ counsel that she had no jurisdiction in the matter.
A medical report in respect of the first
applicant drawn up on 29 June 2010 indicates that he had been continually
exposed to attacks from children in the neighbourhood.
Medical reports in respect of the first
applicant drawn up on 29 June, 25 October and 24 November 2010 and 9 February
2011 indicate that the first applicant had been continually exposed to attacks
from children in the neighbourhood.
On 1 July 2010 the police interviewed P.B., a
pupil attending A.K.Primary School, about the incidents of 13 and 14 May 2010,
in which he denied his involvement.
The applicants allege that on 13 July 2010 at 9
p.m. four boys and a girl made repeated lewd comments in a loud voice under the
applicants’ window. When the second applicant asked them to be quiet they
replied provocatively, using the Serbian dialect in direct allusion to the
applicants’ Serbian origin, telling her: “Call the police, we are not afraid (zovi
bre policiju, mi se ne bojimo)”. The second applicant reported this
incident on 14 July 2010 to a social worker from the Susedgrad Social Welfare
Centre, Ms. J.S.
On 19 July 2010 the Susedgrad Social Welfare
Centre interviewed V.K., who lived in the same apartment building as the
applicants. She denied her involvement in the harassment of the applicants. She
also said that children and alcoholics had frequently gathered at the bench in
front of the apartment building where she lived and had made screaming noises,
which had irritated her family as well.
On 2 August 2010 the Susedgrad Social Welfare
Centre informed the police that the second applicant had complained about
continued harassment and violence against the first applicant. The police were
asked to take appropriate measures.
On 26 August 2010 the police interviewed Z.B., a
pupil attending A.K.Primary School, who denied any involvement in the
harassment of the first applicant.
On 27 August 2010 the second applicant asked the
ZagrebMunicipality for the wooden bench beneath their window to be removed.
The applicants allege that on 31 August 2010 at
around 3 p.m., when they were returning home from a shop, a boy known to them
as M. rode past them on a bicycle and shouted insults at the first applicant, saying,
inter alia: “Dalibor is a fag”. The first applicant felt extremely
anxious and stressed.
The applicants allege that on 1 September 2010
at 6.45 p.m. three boys on bicycles arrived in front of their window and threw
rubbish and screamed. At 7.20 p.m. more children gathered around the
wooden bench in front of the applicants’ window and repeatedly hit a nearby
metal fence, thus making a lot of noise. They also threw a stone at the
applicants’ window and made lewd comments in loud voices. At 10.03 p.m.
the second applicant called the police. Since the police had not arrived, she
called them again at 10.28 p.m. The police said that they would come but
that they had other calls to answer as well. The police arrived at 10.32 p.m.
and told the children to move a few metres away from the applicants’ window.
They made no attempt to identify the children. A police report of the same day
indicates that at 9.21 p.m. the second applicant had called the police and
complained about noise in the park. When the police arrived at 10.35 p.m. they
had not found anyone in front of the building.
The applicants allege that on 3 September 2010 a
group of about ten children gathered around the bench and made an unbearable
amount of noise. At 10.15 p.m. the second applicant called the police, who
arrived at 10.40 p.m. and ordered the children to go away, without, however,
making any attempt to identify them. A police report of the same day indicates
that at 10.20 p.m. the second applicant had called the police and complained
about noise in the park. When the police arrived at 10.25 p.m. they had not found
anyone.
The applicants allege that on 5 September 2010
at about 9 p.m. they noticed, on returning from church, that an unidentified
white substance had been thrown at their window in their absence. There were
also some children screaming under their window. At 10 p.m. the second
applicant called the police. The applicants further allege that on 7, 8, 14, 23
and 27 September 2010, children gathered around the bench and made an
unbearable amount of noise.
On 23 September 2010 the police interviewed
I.S., a pupil attending A.K.Primary School, who denied any involvement in the
harassment of the first applicant.
The applicants allege that on 2 October 2010
five boys gathered around the bench and made loud noises. At 7.40 p.m. seven
boys threw balls at the applicants’ window and made noise until late at night.
At 11.38 p.m. the second applicant called the police, who arrived at a quarter
past midnight and told the boys to leave without asking them any questions or
making any attempt to identify them. A police report of the same day indicated
that the first applicant had called the police at 11.40 p.m. and complained
about noise. When the police had arrived at a quarter past midnight they had
not found anyone.
The applicants further allege that on 4 October
2010 at 4 a.m. they were awakened by a car alarm under their window. Some
children were banging at the outer wall of their flat, making a very loud
noise. The first applicant’s pet rabbit died that night and he attributed the
rabbit’s death to the events of that night, which made him extremely upset. On
15 October 2010, while the applicants were absent, someone spat on their
living-room window until it was completely covered in saliva. On 23 October and
7, 14 and 19 November 2010 groups of children gathered around the bench, making
a lot of noise.
On 17 November 2010 the ZagrebMunicipality
informed the second applicant that her request for the removal of the bench
situated beneath the balcony of the applicants’ flat had been denied.
The applicants allege that on 22 November 2010,
while they were coming home from a shop, a group of children shouted after
them: “Dalibor, Dalibor!” The first applicant was paralysed with fear and asked
his mother why they would not leave him alone. The second applicant wrote to
the Office of the President of Croatia and the Ombudswoman for Persons with
Disabilities about the harassment of her son, seeking their assistance in
connection with the removal of the bench. On 5 December 2010 at around midnight
some children threw snowballs at the applicants’ window, which terrified the
first applicant.
On 14 December 2010 the Ombudswoman for Persons
with Disabilities recommended to the ZagrebMunicipality that the bench be
removed. The bench was removed in February 2011. The applicants allege that on
the same day some children destroyed a metal container under their window where
the gas meters were located.
The applicants allege that further incidents
occurred as follows. On 5 February 2011 a group of children shouted
provocatively at the second applicant on the street, using the Serbian dialect
(“De si bre?”). On 8 February 2011 at 6.40 p.m. some children rang
the applicants’ doorbell and then ran away. On 10 February 2011 the applicants
went to a hairdresser, taking a detour in order to avoid the children. However,
they met a group of children who shouted “Dalibor!” in a provocative manner. On
13 February 2011 at 12.30 p.m. seven boys ran around the applicants’ flat,
banged on the walls, climbed onto their balcony, peered into the flat and
laughed loudly. At 9.45 p.m. a group of boys sang the song “We are Croats”
beneath the applicants’ window.
A medical report of 9 March 2011 in respect of
the first applicant indicates that owing to stress he often bit his lips and
fists, and that he had a twitch in his left eye and symptoms of psoriasis. It
also mentioned that he had frequently been attacked and ridiculed and that it
was necessary to ensure a calm and friendly environment for him.
II. RELEVANT DOMESTIC LAW
A. The Constitution
1. Relevant provisions
The relevant provisions of the Constitution of
the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos.
56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated
text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum)
and 76/2010) read as follows:
Article 14
“Everyone in the Republic of Croatia shall enjoy rights and
freedoms regardless of their race, colour, sex, language, religion, political
or other belief, national or social origin, property, birth, education, social
status or other characteristics.
All shall be equal before the law.”
Article 21
“Every human being has the right to life.
...”
Article 23
“No one shall be subjected to any form of ill-treatment ...
...”
Article 35
“Everyone has the right to respect for and legal protection of
his or her private and family life, dignity, reputation and honour.”
Article 140
“International agreements in force which were concluded and
ratified in accordance with the Constitution and made public shall be part of
the internal legal order of the Republic of Croatia and shall have precedence
in terms of their legal effects over the [domestic] statutes. ...”
2. The Constitutional Court’s jurisprudence
In its decisions nos. U-I-892/1994 of 14
November 1994 (Official Gazette no. 83/1994) and U-I-130/1995 of 20 February
1995 (Official Gazette no. 112/1995) the Constitutional Court held that all
rights guaranteed in the Convention and its Protocols were also to be
considered constitutional rights having legal force equal to the provisions of
the Constitution.
B. The Criminal Code
The relevant part of the Criminal Code (Kazneni
zakon, Official Gazette no. 110/1997) reads as follows:
Article 10
“Criminal legislation is not applicable in respect of a child
who at the time when he or she committed a criminal offence was not yet fourteen.”
C. The Minor Offences Act
The relevant part of the Minor Offences Act (Prekršajni
zakon, Official Gazette no 107/2007) reads as follows:
Section 9
“(1) A person who at the time when a minor offence was
committed was not yet fourteen is not liable for the minor offence.
(2) When a person under subsection 1 of this section frequently
behaves in a manner which amounts to serious minor offences, the State body
competent to act shall inform that person’s parents or guardians and the
competent social welfare centre about the person’s behaviour.
(3) A parent of ... a person under subsection 1 of this section
shall be punished for a minor offence committed by that person where the minor
offence committed is directly connected to failure to supervise that person ...”
D. The Administrative Disputes Act
The Administrative Disputes Act (Zakon o
upravnim sporovima,Official Gazette of the Socialist Federal Republic of
Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos.
53/1991, 9/1992 and 77/1992 – in force until 31 December 2011) in its
relevant part provided as follows:
Section 66
“A request for the protection of a constitutionally guaranteed
right or freedom ... if such a right or freedom has been violated by a final
individual act [that is, decision], and no other judicial protection is
secured, shall be decided by the [Administrative Court], by applying mutatis
mutandis the provisions of this Act.”
Sections 67-76 provide for special proceedings
for the protection of constitutionally guaranteed rights and freedoms from
unlawful factual (physical) acts of public officials where no other judicial
remedy is available. Under the case-law of the domestic courts, the protection
against unlawful “acts” also includes omissions (for example, the
Administrative Court in its decision no. Us-2099/89 of 21 September 1989 and
the Supreme Court in its decision no. Gž-9/1993 of 6
April 1993 held that failure of the administrative authorities to carry
out their own enforcement order constituted an “unlawful act” within the
meaning of section 67 of the Administrative Disputes Act).
Under section 67 such proceedings are to be
instituted by bringing an “action against an unlawful act” (tužba za zaštitu
od nezakonite radnje) in the competent municipal court. The action must be
brought against the public authority to which the factual act (or omission) is
imputable (the defendant).
Under section 72 the action is to be forwarded
to the public authority concerned for a reply within the time-limit set by the
court conducting the proceedings. However, a decision may be adopted even
without such a reply where the submissions in the action provide a reliable
basis for the decision.
Section 73 provides that the court decides on
the merits of the case by a judgment. If it finds in favour of the plaintiff,
the court orders the defendant to desist from the unlawful activity and, if
necessary, orders restitutio in integrum.
Section 74 provides that in proceedings
following an “action against an unlawful act” the court is to apply, mutatis
mutandis,the provisions of the Civil Procedure Act.
E. The Obligations Act
The relevant part of the Obligations Act (Zakon
o obveznim odnosima, Official Gazette, nos. 35/2005 and 41/2008 – “the 2006
Obligations Act”), which entered into force on 1 January 2006 and abrogated the
former 1978 Obligations Act, reads as follows:
Rights of personality
Section 19
“(1) Every natural person or legal entity is
entitled to the protection of its rights of personality (prava osobnosti)
under the conditions provided by law.
(2) Rights of personality within the meaning of this
Act are the right to life, to physical and mental health, reputation, honour,
dignity, name, privacy of personal and family life, liberty, etc.
(3) A legal entity shall have all the
above-mentioned rights of personality – apart from those related to the
biological character of a natural person – and, in particular, the right to a
reputation and good name, honour, name or company name, business secrecy,
entrepreneurial freedom, etc.”
Section 1046
“Damage is ... infringement of the right to respect for one’s
personal dignity (non-pecuniary damage).”
Request to desist from a violation of rights of personality
Section 1048
“Anyone may request a court or other competent authority to
order the cessation of an activity which violates his or her rights of
personality and the elimination of its consequences.”
The relevant case-law
As to which rights of natural persons, apart
from those enumerated in section 19 of the Obligations Act, are to be
considered rights of personality, it should be noted that only the following of
these rights have so far been interpreted as rights of personality by the
Croatian courts: the right to life, the right to physical and mental integrity
(health), the right to liberty, the right to reputation and honour, the right
to privacy of personal and family life, the right to secrecy of letters and
personal manuscripts, the right to personal identity (in particular the rights
to one’s image, voice and name) and the moral rights of the author.
The relevant part of the Decision of the Constitutional Court, no. U-III-1437/2007 of 23 April 2008, concerning the right to
compensation in respect of the right to personal integrity, reads as follows:
“...
Section 1046 of the Civil Obligations Act defines non-pecuniary
damage as infringement of the right to respect for one’s personal integrity. In
other words, every infringement with one’s right to personal integrity amounts
to non-pecuniary damage.
Section 19(2) of the Civil Obligations Act defines the right to
personal integrity for the purposes of that Act as: the right to life, physical
and mental health, reputation, honour, respect for one’s dignity and name,
privacy of personal and family life, freedom and other aspects.
... it is to be concluded that in this case there has been a
violation of human, constitutional and personal values because the applicant
was in prison conditions which were incompatible with the standards prescribed
by the Enforcement of Prison Sentences Act and also with the legal standards
under Article 25 § 1 of the Constitution. For that reason the courts are
obliged to award compensation for the infringement of the applicant’s dignity.
...”
F. The Prevention of Discrimination Act
The relevant part of the Prevention of
Discrimination Act (Zakon o suzbijanju diskriminacije, Official Gazette
no. 85/2008) reads as follows:
Section 1
“(1) This Act ensures protection and promotion of equality as
the highest value of the constitutional order of the Republic of Croatia;
creates conditions for equal opportunities and regulates protection against
discrimination on the basis of race or ethnic origin or skin colour, gender,
language, religion, political or other conviction, national or social origin,
state of wealth, membership of a trade union, education, social status, marital
or family status, age, health condition, invalidity, genetic inheritance,
gender identity, expression or sexual orientation.
(2) Discrimination within the meaning of this Act means putting
any person in a disadvantageous position on any of the grounds under subsection
1 of this section, as well as his or her close relatives.
...”
Section 8
“This Act shall be applied in respect of all State bodies ...
legal entities and natural persons ...”
Section 16
“Anyone who considers that, owing to discrimination, any of his
or her rights has been violated may seek protection of that right in
proceedings in which the determination of that right is the main issue, and may
also seek protection in separate proceedings under section 17 of this Act.”
Section 17
“A person who claims that he or she has been a victim of
discrimination in accordance with the provisions of this Act may bring a claim
and seek:
1. a ruling that the defendant has violated the plaintiff’s
right to equal treatment or that an act or omission by the defendant may lead
to the violation of the plaintiff’s right to equal treatment (claim for an
acknowledgment of discrimination);
2. a ban (on the defendant) from undertaking acts which violate
or may violate the plaintiff’s right to equal treatment or an order for
measures aimed at removing discrimination or its consequences to be taken
(claim for a ban or for removal of discrimination);
3. compensation for pecuniary and non-pecuniary damage caused
by the violation of the rights protected by this Act (claim for damages);
4. an order for a judgment finding a violation of the right to
equal treatment to be published in the media at the defendant’s expense.
...”
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
A. Committee of Ministers
The relevant parts of Recommendation Rec(2004)10
of the Committee of Ministers to member States concerning the protection of the
human rights and dignity of persons with mental disorder (adopted by the
Committee of Ministers on 22 September 2004 at the 896th meeting of the
Ministers’ Deputies) read:
“...
Having regard, in particular:
...
– to the Convention for the Protection of Human Rights and
Fundamental Freedoms of 4 November 1950 and to its application by the organs
established under that Convention;
...
Chapter II – General provisions
Article 3 – Non-discrimination
1. Any form of discrimination on grounds of mental disorder
should be prohibited.
2. Member states should take appropriate measures to eliminate
discrimination on grounds of mental disorder.
Article 4 – Civil and political rights
1. Persons with mental disorder should be entitled to exercise
all their civil and political rights.
2. Any restrictions to the exercise of those rights should be
in conformity with the provisions of the Convention for the Protection of Human
Rights and Fundamental Freedoms and should not be based on the mere fact that a
person has a mental disorder.
...
Article 7 – Protection of vulnerable persons with mental
disorders
1. Member states should ensure that there are mechanisms to
protect vulnerable persons with mental disorders, in particular those who do
not have the capacity to consent or who may not be able to resist infringements
of their human rights.
2. The law should provide measures to protect, where
appropriate, the economic interests of persons with mental disorder.
...”
The relevant parts of Recommendation Rec(2006)5
of the Committee of Ministers to member States on the Council of Europe Action
Plan to promote the rights and full participation of people with disabilities
in society: improving the quality of life of people with disabilities in Europe
2006-2015 (adopted by the Committee of Ministers on 5 April 2006 at the 961st
meting of the Ministers’ Deputies) read:
“...
Bearing in mind the Convention for the Protection of Human
Rights and Fundamental Freedoms (ETS No. 5);
...
3.12. Action line No. 12: Legal protection
3.12.1. Introduction
People with disabilities have the right to recognition
everywhere as persons before the law. When assistance is needed to exercise
that legal capacity, member states must ensure that this is appropriately
safeguarded by law.
Persons with disabilities constitute a varied population group,
but all have in common, to a greater or lesser extent, the need for additional
safeguards in order to enjoy their rights to the full and to participate in
society on an equal basis with other members.
The need to focus particular attention on the situation of
persons with disabilities, in terms of the exercise of their rights on an equal
basis with others, is confirmed by the initiatives taken in this area at
national and international level.
The principle of non-discrimination should be the basis of
government policies designed to deliver equality of opportunity for people with
disabilities.
Access to the legal system is a fundamental right in a
democratic society but people with disabilities can often face a number of
barriers, including physical access difficulties. This requires a range of
measures and positive actions, including general awareness raising among the
legal professions about disability issues.
3.12.2. Objectives
i. To ensure effective access to justice for persons with
disabilities on an equal basis with others;
ii. to protect and promote the enjoyment of all human rights
and fundamental freedoms by persons with disabilities on an equal basis with
others.
3.12.3. Specific
actions by member states
i. To provide protection against discrimination through the
setting up of specific legislative measures, bodies, reporting procedures and
redress mechanisms;
ii. to ensure that provisions which discriminate against
disabled people are eradicated from mainstream legislation;
iii. to promote training on human rights and disability (both
national and international) for law enforcement personnel, public officials,
judiciary and medical staff;
iv. to encourage non-governmental advocacy networks working in
defence of people with disabilities’ human rights;
v. to ensure people with disabilities have equal access to the
judicial system by securing their right to information and communication that
are accessible to them;
vi. to provide appropriate assistance to those people who
experience difficulty in exercising their legal capacity and ensure that it is
commensurate with the required level of support;
...
3.13. Action line No. 13: Protection against violence and
abuse
3.13.1. Introduction
Acts of abuse or violence against any person are unacceptable
and society has a duty to ensure that individuals, particularly the most
vulnerable, are protected against such abuse.
There are indications that the rate of abuse and violence
committed against persons with disabilities is considerably higher than the
rate for the general population, and higher in women with disabilities,
particularly women with severe disabilities, where the percentages of abuse far
exceed those of non-disabled women. Such abuse can occur in institutions or
other types of care and situations, including the family environment. It can be
inflicted by strangers or persons known to the individual and can take many
forms, for instance verbal abuse, violent actions, or the refusal to meet basic
needs.
While governments cannot guarantee that abuse will not happen
they must do their utmost to establish protection and the strongest possible
safeguards. Prevention can be assisted in many ways, particularly through
education to appreciate the rights of individuals to protection and to
recognise and reduce the risk of abuse. Persons with disabilities who
experience abuse or violence should have access to appropriate supports. They
must have a system in which they can have sufficient confidence to report abuse
and expect follow-up action, including individual support. Such systems require
personnel who are skilled and qualified to detect and respond to situations of
abuse.
While there has been some research undertaken in recent years,
it is clear that further knowledge is required to inform future strategies and
best practice.
3.13.2. Objectives
i. To work within anti-discriminatory and human rights
frameworks towards safeguarding people with disabilities against all forms of
violence and abuse;
ii. to ensure access for people with disabilities to services
and support systems for victims of violence and abuse.
3.13.3. Specific
actions by member states
i. To establish safeguards to protect people with disabilities
from violence and abuse through the effective implementation of policies and
legislation, where necessary;
ii. to promote the availability of and access to training
courses for people with disabilities to reduce the risk of violence and abuse,
for example courses in self-confidence and empowerment;
iii. to develop processes, measures and protocols adapted to
people with disabilities, to improve detection of violence and abuse, and to ensure
that the necessary action is taken against perpetrators, including redress and
adequate professional counselling in case of emotional problems;
iv. to ensure that disabled victims of violence and abuse,
including domestic, have access to the relevant support services, including
redress;
v. to prevent and combat violence, ill-treatment and abuse in
all situations by supporting families, raising public awareness and education,
promoting discussion and co-operation among relevant parties;
vi. to support people with disabilities, in particular women,
and their families, in situations of abuse through the provision of information
and access to services;
vii. to ensure that systems are in place for the protection
against abuse of persons with disabilities in psychiatric facilities, social
care homes and institutions, orphanages, and other institutional settings;
viii. to ensure that relevant training is provided to all staff
working in disability-specific institutional settings and mainstream support
services;
ix. to train police and judicial authorities so that they can
receive testimony from disabled people and treat instances of abuse seriously;
x. to provide people with disabilities with information on how
to avoid the occurrence of violence and abuse, how to recognise it, and how to
report it;
xi. to take effective legislative, administrative, judicial or
other measures with strong sanctions in a transparent manner and to allow for
independent review by civil society in order to prevent all forms of physical
or mental violence, injury or abuse, neglect and negligent treatment,
maltreatment, exploitation or abduction of people with disabilities;
...”
The relevant parts of Resolution ResAP(2005)1 on
safeguarding adults and children with disabilities against abuse (adopted by
the Committee of Ministers on 2 February 2005 at the 913th meeting of the
Ministers’ Deputies) read:
“...
I. Definition of abuse
1. In this Resolution abuse is defined as any act, or failure
to act, which results in a breach of a vulnerable person’s human rights, civil
liberties, physical and mental integrity, dignity or general well-being,
whether intended or through negligence, including sexual relationships or
financial transactions to which the person does not or cannot validly consent,
or which are deliberately exploitative. At a basic level abuse may take a
variety of forms:
a. physical violence, including corporal punishment, incarceration
– including being locked in one’s home or not allowed out –, over- or misuse of
medication, medical experimentation or involvement in invasive research without
consent, and unlawful detention of psychiatric patients;
b. sexual abuse and exploitation, including rape, sexual
aggression, indecent assault, indecent exposure, forced involvement in
pornography and prostitution;
c. psychological threats and harm, usually consisting of
verbal abuse, constraints, isolation, rejection, intimidation, harassment,
humiliation or threats of punishment or abandonment, emotional blackmail,
arbitrariness, denial of adult status and infantilising disabled persons, and
the denial of individuality, sexuality, education and training, leisure and
sport;
...
3. These abuses require a proportional response – one which
does not cut across legitimate choices made by individuals with disabilities
but one which recognises vulnerability and exploitation. The term “abuse”
therefore refers to matters across a wide spectrum, which includes criminal
acts, breaches of professional ethics, practices falling outside agreed
guidelines or seriously inadequate care. As a consequence, measures to prevent
and respond to abuse involve a broad range of authorities and actors, including
the police, the criminal justice system, the government bodies regulating
service provision and professions, advocacy organisations, user networks and
patient councils, as well as service providers and planners.
II. Principles and measures to safeguard adults and
children with disabilities against abuse
1. Protection of human
rights
Member states have a duty to protect the human rights and
fundamental freedoms of all their citizens. They should ensure that people with
disabilities are protected at least to the same extent as other citizens.
Member states should recognise that abuse is a violation of
human rights. People with disabilities should be safeguarded against deliberate
and/or avoidable harm at least to the same extent as other citizens. Where
people with disabilities are especially vulnerable, additional measures should
be put in place to assure their safety.
2. Inclusion of people
with disabilities
Member states should acknowledge that safeguarding the rights
of people with disabilities as citizens of their country is a state
responsibility.
They should combat discrimination against people with
disabilities, promote active measures to counter it and ensure their inclusion
in the socio-economic life of their communities.
They should recognise that all people with disabilities are
entitled to dignity, equal opportunity, their own income, education,
employment, acceptance and integration in social life, including accessibility,
health care as well as medical and functional rehabilitation.
They should guarantee that people with disabilities are ensured
protection – to at least the same extent as other citizens – in their use of
services of all kinds.
3. Prevention of abuse
Member states should increase public awareness, promote open
discussion, develop knowledge, and improve education and professional training.
They should encourage cooperation between authorities and
organisations in finding measures to prevent abuse, to improve detection and
reporting of abuse, and to support the victims.
They should create, implement and monitor legislation
concerning the standards and regulation of professionals and care settings, in
order to make abuse of people with disabilities less likely through action
taken or through failure to act.
4. Legal protection
Member states should ensure access to the criminal justice
system and provision of redress and/or compensation to people with disabilities
who have been victims of abuse at least to the same extent as other citizens.
Where necessary additional assistance should be provided to remove physical and
other barriers for people with disabilities.
People with disabilities are applicants under civil law whose
rights should be safeguarded. Member states should therefore ensure that
professionals working within the criminal justice system treat people with
disabilities without discrimination and in such a way as to guarantee them
equality of opportunity in the exercise of their rights as citizens.
...”
B. Parliamentary Assembly
The relevant parts of Resolution 1642 (2009) of
the Parliamentary Assembly on access to rights for people with disabilities and
their full and active participation in society (adopted on 26 January 2009)
read as follows:
“1. More than one person in every 10 suffers from some form of
disability, representing a total of 650 million people worldwide, with an even
greater ratio of up to 200 million in Europe alone. There is a correlation
between age and disability: as the population ages and health care improves,
the number of people with disabilities in Europe grows, and it will continue to
grow.
2. The Parliamentary Assembly recalls that the Council of
Europe’s European Convention on Human Rights (ETS No. 5) protects all people,
including those with disabilities, and that Article 15 of the revised European
Social Charter (ETS No. 163) explicitly guarantees people with disabilities the
effective exercise of the right to independence, social integration and
participation in the life of the community. A more recent and eagerly awaited
text, the United Nations Convention on the Rights of Persons with Disabilities,
came into force with effect from 3 May 2008. The Assembly welcomes this text,
which gives a detailed description of the rights of people, including children,
with disabilities, and will certainly contribute to the change of perception
needed to improve the situation of people with physical or mental disabilities.
3. The Assembly notes that, in practice, the access of people
with physical or mental disabilities to their rights on an equal basis with
those of people without disabilities frequently remains wishful thinking and
proves inadequate. It therefore welcomes the preparation by the Council of
Europe of the Disability Action Plan to promote the rights and participation of
people with disabilities in society for 2006-2015 (Recommendation Rec(2006)5 of
the Committee of Ministers), which endeavours to find practical responses to
the most serious and most common problems encountered by people with
disabilities, to foster equality of opportunities, and which advocates a number
of measures to improve the situation of people with disabilities in all aspects
of everyday life.
...
18. Whereas the attitude of society, prejudice and fixed
mindsets remain the main obstacle to the access to rights for people with
disabilities and their full and active participation in society, the Assembly
invites member states to:
18.1. step up their campaigns drawing public attention to, and
providing information about, disability-related issues;
18.2. take legal action against and penalise discriminatory
practices and unacceptable attitudes towards people with disabilities,
especially abuse, committed either by isolated individuals or in health-care
establishments;
18.3. disseminate examples of good practices in all spheres of
everyday life, so as to make clearer − to all, and particularly to young
people − the scope of this question in civil society, the working
environment and the world of education;
18.4. ensure the full and active participation of people with
disabilities in all of these processes.
...”
IV. RELEVANT UNITED NATIONS MATERIALS
The relevant parts of the Convention on the
Rights of Persons with Disabilities (which was ratified by Croatia in July 2007 and entered into force on 3 May 2008) read:
Article 1 - Purpose
“The purpose of the present Convention is to promote, protect
and ensure the full and equal enjoyment of all human rights and fundamental
freedoms by all persons with disabilities, and to promote respect for their
inherent dignity.
Persons with disabilities include those who have long-term
physical, mental, intellectual or sensory impairments which in interaction with
various barriers may hinder their full and effective participation in society
on an equal basis with others.”
Article 4 - General obligations
“1. States Parties undertake to ensure and promote the full
realization of all human rights and fundamental freedoms for all persons with
disabilities without discrimination of any kind on the basis of disability. To
this end, States Parties undertake:
To adopt all appropriate legislative, administrative and other
measures for the implementation of the rights recognized in the present
Convention;
To take all appropriate measures, including legislation, to
modify or abolish existing laws, regulations, customs and practices that
constitute discrimination against persons with disabilities;
To take into account the protection and promotion of the human
rights of persons with disabilities in all policies and programmes;
To refrain from engaging in any act or practice that is
inconsistent with the present Convention and to ensure that public authorities
and institutions act in conformity with the present Convention;
To take all appropriate measures to eliminate discrimination on
the basis of disability by any person, organization or private enterprise;
...”
Article 5 - Equality and non-discrimination
“1. States Parties recognize that all persons are equal before
and under the law and are entitled without any discrimination to the equal
protection and equal benefit of the law.
2. States Parties shall prohibit all discrimination on the
basis of disability and guarantee to persons with disabilities equal and effective
legal protection against discrimination on all grounds.
3. In order to promote equality and eliminate discrimination,
States Parties shall take all appropriate steps to ensure that reasonable
accommodation is provided.
4. Specific measures which are necessary to accelerate or
achieve de facto equality of persons with disabilities shall not be considered
discrimination under the terms of the present Convention.”
Article 8 - Awareness-raising
“1. States Parties undertake to adopt immediate, effective and
appropriate measures:
To raise awareness throughout society, including at the family
level, regarding persons with disabilities, and to foster respect for the
rights and dignity of persons with disabilities;
To combat stereotypes, prejudices and harmful practices
relating to persons with disabilities, including those based on sex and age, in
all areas of life;
To promote awareness of the capabilities and contributions of
persons with disabilities.
Measures to this end include:
Initiating and maintaining effective public awareness campaigns
designed:
To nurture receptiveness to the rights of persons with
disabilities;
To promote positive perceptions and greater social awareness
towards persons with disabilities;
To promote recognition of the skills, merits and abilities of
persons with disabilities, and of their contributions to the workplace and the
labour market;
Fostering at all levels of the education system, including in
all children from an early age, an attitude of respect for the rights of
persons with disabilities;
Encouraging all organs of the media to portray persons with
disabilities in a manner consistent with the purpose of the present Convention;
Promoting awareness-training programmes regarding persons with
disabilities and the rights of persons with disabilities.”
Article 15 - Freedom from torture or cruel, inhuman or
degrading treatment or punishment
“1. No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment. In particular, no one shall be subjected
without his or her free consent to medical or scientific experimentation.
2. States Parties shall take all effective legislative,
administrative, judicial or other measures to prevent persons with
disabilities, on an equal basis with others, from being subjected to torture or
cruel, inhuman or degrading treatment or punishment.”
Article 16 - Freedom from exploitation, violence and abuse
“1. States Parties shall take all appropriate legislative,
administrative, social, educational and other measures to protect persons with
disabilities, both within and outside the home, from all forms of exploitation,
violence and abuse, including their gender-based aspects.
2. States Parties shall also take all appropriate measures to
prevent all forms of exploitation, violence and abuse by ensuring, inter alia,
appropriate forms of gender- and age-sensitive assistance and support for
persons with disabilities and their families and caregivers, including through
the provision of information and education on how to avoid, recognize and
report instances of exploitation, violence and abuse. States Parties shall
ensure that protection services are age-, gender- and disability-sensitive.
3. In order to prevent the occurrence of all forms of
exploitation, violence and abuse, States Parties shall ensure that all
facilities and programmes designed to serve persons with disabilities are
effectively monitored by independent authorities.
4. States Parties shall take all appropriate measures to
promote the physical, cognitive and psychological recovery, rehabilitation and
social reintegration of persons with disabilities who become victims of any
form of exploitation, violence or abuse, including through the provision of
protection services. Such recovery and reintegration shall take place in an
environment that fosters the health, welfare, self-respect, dignity and
autonomy of the person and takes into account gender- and age-specific needs.
5. States Parties shall put in place effective legislation and
policies, including women- and child-focused legislation and policies, to
ensure that instances of exploitation, violence and abuse against persons with
disabilities are identified, investigated and, where appropriate, prosecuted.”
Article 17 - Protecting the integrity of the person
“Every person with disabilities has a right to respect for his
or her physical and mental integrity on an equal basis with others.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2, 3 AND 8 OF THE
CONVENTION
The applicants complained that the State
authorities had not given them adequate protection from harassment by minor
children from their neighbourhood. They relied on Articles 2, 3 and 8 of the
Convention, the relevant parts of which read as follows:
Article 2
“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
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
Article 8
“1. Everyone has the right to respect for his
private ... life ...
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
1. The parties’ arguments
(a) The Government’s submissions
The Government maintained that Articles 2 and 3
were not applicable to the circumstances of the present case. As regards
Article 2, they argued that the applicants’ lives had never been put at risk in
any manner. As regards Article 3 of the Convention, the Government submitted
that the requisite level of severity had not been reached since the harassment
complained of had mostly been verbal while the injuries the first applicant had
sustained on 4 April 2009 had been of a mild nature. They also submitted that
the fact that the first applicant had expressed a wish to walk around showed
that he had not been traumatised by the events at issue.
The Government also argued that the applicants
had not exhausted all available domestic remedies. In the Government’s view the
applicants should have brought a civil action for damages against the children
concerned and their parents and also against the school the children were
attending, or other authorities. Furthermore, they could have instituted
minor-offences proceedings against the children’s parents. They could also have
brought an “action against an unlawful act” against the relevant authorities
under the Administrative Disputes Act. In the proceedings instituted upon such
an action the competent court was obliged to act urgently. In a judgment
upholding the action, the court would forbid any further unlawful act. The
judgment had to be enforced within three days after it had been served on the
parties.
As regards the events of 10 April and 13 May
2010, the Government submitted that the alleged perpetrators, P.B. and Z.B.,
had been aged fourteen and that they could be held criminally responsible.
Since the criminal inquiry was still ongoing, any complaint relating to these
incidents was premature.
(b) The applicants’ submissions
The applicants maintained in reply that they had
been submitted to ongoing harassment which also included acts of physical
violence against the first applicant and verbal violence against both
applicants. Such harassment had disrupted their daily lives and caused them a
significant level of constant stress and suffering, in particular in view of
the first applicant’s medical condition. They argued that the ongoing pattern
of harassment and abuse met the requisite intensity standard under Articles 3
and 8 of the Convention and that Article 2 of the Convention was also
applicable given the escalation of violence against the first applicant in view
of his extreme vulnerability and also in view of the likelihood, evidenced in
research on disability hate crime, of low-level harassment if left unchecked
turning into full-scale violence, possibly resulting in extreme circumstances
in death or severe ill-treatment.
As to the exhaustion of domestic remedies, they
argued that the domestic legal system did not provide any remedies affording
redress in respect of disability hate crime; this was supported by the fact
that the Government had not submitted any relevant case-law to support their
assertions as to the availability and efficiency of the remedies they relied
on.
As regards the possibility of bringing an action
against the authorities on account of an unlawful act under section 67 of the
Administrative Disputes Act, the applicants maintained that the admissibility
requirements for that remedy – for example, that the unlawful act had to amount
to a violation of the Constitution, that the remedy should be the last resort,
and that the unlawful activity was ongoing at the time when the action was
brought – made it ineffective in the case at issue.
As regards a possible civil action for damages
against the parents of the children involved, the applicants argued that the
Court had already held in cases against Croatia that effective deterrence
against attacks on the physical integrity of a person required efficient
criminal-law mechanisms that would have ensured adequate protection in that
respect (they cited Sandra Janković v. Croatia, no. 38478/05, § 36, 5 March 2009).
As regards minor-offences proceedings, the
applicants submitted that they applied only to minor offences against public
peace and order and that therefore such a remedy was clearly inadequate in respect
of the harm done to the applicants’ physical and psychological integrity.
As regards the Government’s contention that the
application was premature in respect of the events of 10 April and 13 May 2010
since the investigation into those events was still ongoing, the applicants
replied that they had never received any official information that any
investigation into the matter had been instituted and that in any event there
had been unjustified delays in the conduct of the authorities. Furthermore, the
investigation concerned isolated incidents and not the applicants’ situation as
a whole.
2. The Court’s assessment
(a) Applicability of Articles 2, 3 and 8 of the
Convention to the circumstances of the present case
(i) In respect of the first applicant
The Court takes note of repeated incidents of
violent behaviour towards the first applicant. The facts in issue concern
frequent episodes of harassment in the period between 31 July 2008 and February
2011, amounting to about two and half years. The incidents concerned both
verbal and physical harassment, including violent acts such as burning the
first applicant’s hands with cigarettes, pushing him against an iron fence and
hitting him with a ball. In view of the fact that all the incidents in the
present case concerned a series of acts by a group of children and occurred over
a longer period of time, the Court will examine them as a continuing situation.
The Court notes further that the incidents of
harassment of the first applicant by children living in his neighbourhood and
children attending a nearby primary school are well documented by, inter
alia, police reports and medical reports. The latter show the adverse
impact that these incidents have had on his physical and mental health. The
reports concerning the first applicant indicate that he is suffering from
serious mental disorders, but is a peaceful and benign individual who cannot
and does not know how to defend himself from the abusers. Owing to the
continued harassment against him, he has had to undergo psychotherapy, has
often been scared and is under stress. His removal from the situation of
harassment was recommended.
The first applicant made credible assertions
that over a prolonged period of time he had been exposed to threats to his
physical and mental integrity and had actually been harassed or attacked on a
number of occasions.
In view of these facts, the Court considers that
the State authorities had a positive obligation to protect the first applicant
from the violent behaviour of the children involved. This obligation in the
circumstances of the present case arises both under Articles 3 and 8 of the
Convention. In the circumstances of the case the Court considers, however, that
it suffices to analyse the first applicant’s complaints from the standpoint of
Article 3 of the Convention only.
As to Article 3 of the Convention, the Court
reiterates that ill-treatment must attain a minimum level of severity if it is
to fall within the scope of Article 3. The assessment of this minimum is
relative: it depends on all the circumstances of the case, such as the nature
and context of the treatment, its duration, its physical and mental effects
and, in some instances, the sex, age and state of health of the victim (see Costello-Roberts
v. the United Kingdom, 25 March 1993, § 30, Series A no.
247-C, and A. v. the
United Kingdom, 23 September 1998, § 20, Reports 1998‑VI).
Treatment has been held by the Court to be
“inhuman” because, inter
alia, it was premeditated, was applied for hours at a stretch and
caused either actual bodily injury or intense physical and mental suffering
(see Labita v.
Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). Treatment has been
considered “degrading” when it was such as to arouse in its victims feelings of
fear, anguish and inferiority capable of humiliating and debasing them and
possibly breaking their physical or moral resistance (see Hurtado v. Switzerland,
28 January 1994, opinion of the Commission, § 67, Series A no. 280,
and Wieser
v. Austria, no. 2293/03, § 36, 22 February 2007).
The Court considers that the harassment of the
first applicant – which at least on one occasion also caused him physical
injuries, combined with his feelings of fear and helplessness – was
sufficiently serious to reach the level of severity under of Article 3 of
the Convention and thus make this provision applicable in the present case (see
Price v. the United Kingdom,
no. 33394/96, § 24, ECHR 2001-VII, and Milanović v. Serbia,
no. 44614/07, § 87, 14 December 2010).
(ii) In respect of the second applicant
As regards the second applicant, the Court notes
that she has not been exposed to any form of violence affecting her physical
integrity. However, there is no doubt that the continuing
harassment of the first applicant, her disabled son for whom she has been
taking care, and the incidents of harassment which also concerned her
personally, even in their milder forms, caused disruption to her daily life and
her routines, which had an adverse effect on her private and family life. Indeed,
the 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.
98. It
follows that Article 8 is applicable to the circumstances of the present case
as regards the complaints concerning the second applicant.
(b) Exhaustion of domestic remedies
The Court points out that the purpose of Article
35 is to afford the Contracting States the opportunity of preventing or putting
right the violations alleged against them before those allegations are
submitted to the Convention institutions. Consequently, States are dispensed
from answering for their acts before an international body before they have had
an opportunity to put matters right through their own legal system. The rule of
exhaustion of domestic remedies referred to in Article 35 of the Convention
requires that normal recourse should be had by an applicant only to remedies
that relate to the breaches alleged and at the same time are available and
sufficient. The existence of such remedies must be sufficiently certain not
only in theory but also in practice, failing which they will lack the requisite
accessibility and effectiveness; it falls to the respondent State to establish
that these various conditions are satisfied (see Selmouni v. France [GC],
no. 25803/94, §§ 74 and 75, ECHR 1999‑V).
Article 35 provides for a distribution of the
burden of proof. It is incumbent on the Government claiming non-exhaustion to
satisfy the Court that the remedy was an effective one available in theory and
in practice at the relevant time, that is to say, that it was accessible, was
one which was capable of providing redress in respect of the complaints invoked
and offered reasonable prospects of success (see Akdivar and Others v.
Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions
1996‑IV).
The Court would emphasise that the application
of this rule must make due allowance for the context. Accordingly, it has
recognised that Article 35 must be applied with some degree of flexibility and
without excessive formalism (see Cardot v. France, 19 March 1991, § 34,
Series A no. 200). It has further recognised that the rule of
exhaustion of domestic remedies is neither absolute nor capable of being
applied automatically; in reviewing whether the rule has been observed, it is
essential to have regard to the particular circumstances of the individual case
(see Van Oosterwijck v. Belgium, 6 November 1980, § 35,
Series A no. 40). This means, amongst other things, that the Court
must take realistic account not only of the existence of formal remedies in the
legal system of the Contracting Party concerned but also of the general legal
and political context in which they operate as well as the personal
circumstances of the applicants (see Akdivar and Others, cited above, §
69).
As regards the present case, the Court notes
that the Government suggested that the applicants should have brought a civil
action in damages against the parents of the children implicated in the acts of
harassment and violence against the first applicant; and that they had the
possibility of instituting minor-offences proceedings against the parents of
these children.
In this connection the Court notes that what is
at stake in the present case is not the individual responsibility of the
parents of the children involved but the alleged lack of an adequate response
by the competent State authorities to the repeated acts of harassment and
violence by children who, on account of their young age, cannot be criminally
prosecuted under the national law.
As
regards the Government’s contention that the application was premature because
the children P.B., Z.B. and I.S., who had allegedly been involved in the events
of 10 April and 13 May 2010, had been fourteen at that time and were therefore
criminally liable, the Court firstly reiterates that individual criminal
responsibility is not at issue in the present case. In any event, the incidents
concerned took place in April and May 2010 and the Government have failed to
show that any further steps were taken in addition to the police interviews
conducted in July, August and September 2010 with the minors in question.
However, some further remedies referred to by
the Government call for an assessment of their effectiveness in the particular
circumstances of the present case. The Court notes that sections 67-76 of the
Administrative Disputes Act provide for an “action against an unlawful act”, a
judicial remedy open to anyone who considers that his or her rights or freedoms
guaranteed by the Constitution have been violated by a public authority and
that no other judicial remedy is available. Together with the remedy available
under section 66 of the same Act which provides for a remedy against a final
individual act (see paragraph 65 above), they represent remedies of last
resort, to be used in the absence of any other judicial protection, against
decisions or other (factual) acts or omissions (the “action against an unlawful
act” – see paragraphs 66 and 67 above) by public authorities that are capable
of violating constitutionally guaranteed rights or freedoms. The rationale
behind those remedies is that constitutional rights and freedoms are so
precious that they cannot be left unprotected by the courts.
The Court also notes that the right not to be
ill-treated and the right to respect for one’s private and family life are both
guaranteed by the Croatian Constitution. Furthermore, the relevant case-law of
the national courts shows that an action of this nature may also be brought in
a situation of an omission to act, such as in the present case, where the
applicants alleged that the national authorities had failed to take appropriate
steps. However, certain issues arise as regards the effectiveness of such an
action in the circumstances of the present case.
Firstly, the Government did not indicate which
authority could be held responsible for a failure to take adequate measures.
Since the remedy at issue is an “action against an unlawful act” (or omission),
it is necessary to establish which body had a duty to act and on the basis of
which law. Furthermore, an action in respect of an omission to act may only be
brought against an individual public official who had a duty to act with a
basis in law. It would be difficult in the present case to name an individual
official who had such a duty. The Government, however, made no submissions in
that respect.The Court notes in this connection that one aspect of the
applicants’ complaint was that no State authority was obliged by law to take
any measures in the situation complained of.
An action of this nature under the
Administrative Disputes Act would entail the institution of proceedings in the
ordinary civil courts. The Government have not indicated that an application of
any kind of interim measures would be possible in such proceedings. However,
the situation complained of by the applicants shows that they were continually
harassed, at times almost on a daily basis, and the essence of their complaints
lies in the fact that the national authorities, although aware of that situation,
failed to take appropriate measures to prevent further harassment. Thus, the
situation called for an immediate reaction by the State authorities. The
Government have not shown that any of the remedies referred to by them could be
capable of leading to such an immediate response to the situation of
harassment.
Thus, regarding such “action against an
unlawful act” and a civil action for damages against the State under the
Obligations Act, the Government have not shown that they would have been
capable of leading to the prompt and appropriate measures that were necessary
in the circumstances of the present case.
At this juncture the Court reiterates that the
rationale behind the requirement of the exhaustion of domestic remedies is the
subsidiary nature of the Convention instruments, that is to say, the principle
that the national authorities must be first given the opportunity to remedy the
violation complained of. In this connection the Court notes that the second
applicant repeatedly complained about the ongoing harassment to various
national authorities, such as the police and the State Attorney’s Office, the
competent social welfare centre and the school which the children concerned
attended. The Court considers that she thus gave the relevant authorities an
adequate opportunity to react to her allegations and put an end to the
harassment complained of. She has therefore exhausted the available domestic
remedies.
Furthermore,
the applicants alleged deficiencies in the national system for the protection
of persons with disabilities from acts of harassment and violence, including
the legal framework within which the competent authorities are to operate and
the mechanisms provided for. In this connection the Court notes that the
Government have not shown that these issues could have been examined in any of
the types of proceedings they relied on.
It follows that the applicants were not required
to avail themselves also of the remedies suggested by the Government. In
reaching this conclusion, the Court has taken into consideration the specific
circumstances of the present case, as well as the fact that a right as
fundamental as the right not to be subjected to inhuman and degrading treatment
is at stake and that the Convention is intended to guarantee rights that are
not theoretical or illusory, but rights that are practical and effective (see,
for example, Matthews v. the United Kingdom
[GC], no. 24833/94, § 34, ECHR 1999-I). Accordingly, the Government’s
objection has to be dismissed.
(c) Conclusion
The Court finds that the complaints under
Articles 3 and 8 of the Convention are not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further finds that they are not
inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicants’ submissions
The applicants firstly addressed the issue of
violence against the first applicant as a disability hate crime. Studies
relating to that issue showed that the rate of abuse and violence committed
against persons with disabilities was considerably higher that the rate for the
general population and was widespread. The most common forms of violence
against people with intellectual disabilities were kicking, biting,
name-calling, teasing, stealing, pushing, threatening, throwing objects at
them, telling them to leave a building, hitting, shouting at them, swearing,
demanding money, hair-pulling, throwing stones, spitting, poking, punching,
beating and banging their head against a wall. People with disabilities
frequently experienced violence on an ongoing basis perpetrated by the same
people. Abuse was often perpetrated by gangs of youths who targeted the same
person systematically, as in the present case.
Harassment against disabled persons was usually
motivated by a perception of such persons as inferior. Violence and hostility
might have wide-ranging consequences, including emotional, physical and sexual
implications, or even the death of the victim. People with disabilities might
be forced to restructure their daily lives in order to avoid risk.
In their submissions, the applicants also
relied on the international sources cited above, in particular the United
Nations Convention on the Rights of Persons with Disabilities and the
obligations stemming from it.
The applicants submitted that they had been
subjected to ongoing harassment and abuse for a period of over five years by a
group of mostly unidentified children on account of their Serbian origin and
the first applicant’s disability. The harassment had consisted mostly of verbal
abuse and other forms of anti-social behaviour such as spitting, making noise,
drawing insulting messages on the pavement, and causing damage to the
applicants’ place of residence. It had caused the applicants intense suffering.
Besides the physical harm resulting from the incidents mentioned above, the
ongoing harassment had taken a very significant toll on the first applicant’s
mental well-being as documented by his psychotherapist.
In addition, the applicants had had to change
their daily routines. Daily walks in the park, sitting on a bench in the park
and talking to people were crucial for the first applicant to develop an
independent lifestyle and a sense of inclusion in the community. Because of the
constant harassment by children from his neighbourhood, the first applicant had
had to stop all these activities.
Relying extensively on the Court’s case-law as
regards the State’s positive obligations under Articles 3 and 8 of the
Convention, the applicants argued that the relevant State authorities had been
under a duty to take positive measures to protect them from harm perpetrated by
third parties.The second applicant had repeatedly informed the authorities of
the abuse the applicants had been exposed to but had largely failed to take any
action to prevent ill-treatment from recurring. The authorities had thus been
aware that the harassment against the first applicant had followed the same
pattern
However, despite their knowledge of the
applicants’ situation, the relevant authorities had failed in their duty to put
an end to the harassment and abuse. The applicants argued that there had been
no clarity as to which authority was competent to address their situation. As
to the Government’s contention that the police had reacted adequately to all
complaints by the second applicant, they argued that the police had failed to
grasp the full extent of the ongoing abuse and to prevent further abuse. The
police had failed to identify the perpetrators. The police would simply arrive
at the scene and warn the children to go away. Such a relaxed approach by the
police had failed in its deterrent effect. Furthermore, the police had
addressed each instance of abuse as an isolated event, without comprehending
the continuing nature of the situation. They had also failed to take any
appropriate action such as instituting minor-offences proceedings against the
parents of the children involved.
The competent social welfare centre should have
investigated the case and established the relevant facts; invited the parents
of the perpetrators to a meeting in order to establish their personal
circumstances; issued protective measures to prevent the violence from
recurring; advised or obliged the perpetrators and their parents to attend
counselling; monitored the situation; and drawn up reports on the measures
taken. However, the Susedgrad Welfare Centre had done none of the above. In
2009 it had taken measures against one of the minors involved in the cigarette
burn incident and placed him under the supervision of a social worker and then
initiated court proceedings to place him in an institution for children with
behavioural problems for a period of one year. However, all that had been done
not because of the attack on the first applicant, but owing to the overall
behavioural problems of the individual concerned.
As to the authorities of the school the
children in question had attended, the applicants maintained that although they
had been entitled to take a range of disciplinary measures in cases of violent
behaviour by pupils, including warnings, reprimands, severe reprimands and
expulsion from school, they had failed to take any such measures. It was true,
however, that the school authorities had taken some other measures, such as
calling on parents and children to make sure that violent behaviour against the
applicants ceased and organising meetings to tell pupils about the requirements
of people with special needs. They had also facilitated interviews with the
pupils concerned. However, these measures had not been capable of preventing
further violence against the applicants.
Likewise, none of the other authorities had
done much in order to prevent the violence against and harassment of the
applicants.
(b) The Government’s submissions
The Government argued that save for the
incidents reported to the police and documented by the police reports, the
applicants had not proved that any further incidents had occurred. The
Government submitted that the relevant authorities had taken all appropriate
measures to protect the applicants from harassment. Each time the second
applicant had called the police, the police had arrived in due time and
interviewed the children concerned and warned them about their inappropriate
behaviour. Each time a report had been drawn up by the police and sent to the
State Attorney’s Office.
The school the children in question attended
had also always reacted promptly to the allegations of harassment of the applicants.
The school employees had often held discussions with the pupils and their
parents about people with special needs. The parents had been told to discuss
that issue with their children and the school headmaster had sent a letter to
the parents to that effect.
As regards the incident of 4 April 2009, the
Government submitted that the national authorities had taken all relevant steps
in order to identify the perpetrator. Finally, it had been revealed that I.M.
had burnt the first applicant’s hands with a cigarette. Since I.M., as a child
below fourteen years of age, could not be held criminally responsible, the
applicants had been instructed to institute civil proceedings for damages. The
competent State Attorney’s Office had informed both the Ombudswoman for
Children and the competent social welfare centre of its findings.
As regards the events of 10 April and 13 May
2010, as well as the allegations of constant harassment of the first applicant,
the police had interviewed the children P.B., Z.B. and I.S. The inquiry was
ongoing and since all of them had already been over fourteen when the alleged
acts had taken place, they could be held criminally responsible.
The Government argued that the above showed
that the national authorities had acted promptly and diligently as regards each
complaint submitted by the applicants and taken all steps and measures aimed at
preventing further harassment. Since June 2010 there had been no further
complaints.
The Government further submitted that the
parents had a major responsibility in preventing their children from behaving
inappropriately. The parents of the children involved had constantly been told
by the school authorities, as well as the social services, about the problems
with their children.
On the other hand, the second applicant as the
first applicant’s mother should also bear a certain degree of responsibility in
caring for the applicant. It had been established that the first applicant
needed help in walking and that he needed constant care from his mother. He had
also been found to be suffering from epilepsy and was short-sighted. The social
services had warned the second applicant not to let him out of the flat alone,
which would solve all problems relating to his physical contact with others,
and if she had always accompanied him outside, she would have been able to
raise the other children’s awareness as regards her son.
(c) The third-party intervention
The European Disability Forum viewed the issues
in the present case through the lens of disability hate crime. It maintained
that recognising a hate crime against persons with disabilities represented a
challenge for many legal systems since the use of their vulnerability tended to
prevent the law-enforcement agencies and courts from identifying the actions as
a hate crime. Two separate studies in the United Kingdom had shown that while
people with disabilities were four times more likely than their non-disabled
peers to be verbally and physically attacked, they were half as likely to
report crimes to the police.
The third party further argued that hostile
behaviour towards persons with disabilities that provoked violent attacks was
inherently discriminatory since the victims were chosen because of their
visible disability. It argued that the fear of persons with visible disabilities
whose appearance was seen as “disturbing and unpleasant” was the dominant
reason for violence against persons with disabilities. Such persons were often
seen as inferior or responsible for their own condition, which put the burden
on society as a whole.
Fear of the “different” was nourished only
where the potential victim was perceived as vulnerable. The vulnerability of a
disabled person was an opportunity for the offenders to carry out their
attacks. This was especially pertinent in cases where persons with disabilities
were attacked not for the purpose of robbing them or their property, but to
humiliate and hurt their persona.
The European Disability Forum also submitted
that the specific recognition of disability hate crime was a recent trend.
Relying on Article 5 of the United Nations Convention on the Rights of Persons
with Disabilities (cited above), it submitted that that Article confirmed the
entitlement of persons with disabilities to protection on an equal basis to
others. For the State, this again meant the ability to recognise and address
discrimination based on the victim’s disability, and sufficient knowledge about
disability to be able to apply the law with respect for the needs of persons
with disabilities. In specific cases, observance of the non-discrimination
principle might mean recognising the specific situation of persons with
disabilities compared to their non-disabled peers. The second paragraph of that
Article alluded to the obligation of the State to protect persons with
disabilities against discrimination on all grounds. Again, meeting this
obligation required extensive training of State agents.
The third party also pointed out that that instrument
obliged the States Parties to “take all legislative, administrative, judicial
and other measures to prevent persons with disabilities” to be subjected to
violence, which also required training of those working in the field of the
administration of justice.
In conclusion, the European Disability Forum
submitted that, so far, disability hate crime had not received enough attention
from law-makers and law-enforcement authorities. This had resulted in a failure
to recognise disability hate crime as such, as well as in under-reporting and
misunderstanding of that phenomenon. The response of the authorities to that
phenomenon should shift from reactive to proactive and be aimed at protecting
persons with disabilities from all acts of violence.
2. The Court’s assessment
(a) As regards the first applicant
(i) General 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,15 November 1996, § 79, Reports 1996-V).
The Court reiterates that, as regards the
question whether the State could be held responsible, under Article 3, for
ill-treatment inflicted on persons by non-State entities, 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 together with Article 3, requires States to take measures
designed to ensure that individuals within their jurisdiction are not subjected
to torture or inhuman or degrading treatment or punishment, including such
ill-treatment administered by private individuals (see, mutatis
mutandis, H.L.R.
v. France, 29 April 1997, § 40, Reports
1997-III). These measures should provide effective protection, in
particular, of children and other vulnerable persons, and include reasonable
steps to prevent ill-treatment of which the authorities had or ought to have
had knowledge (see, mutatis mutandis,
Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998-VIII, and E. and Others v.
the United Kingdom, no. 33218/96, § 88, 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 Article 8 of the
Convention (see Mubilanzila Mayeka
and Kaniki Mitunga v. Belgium, no. 13178/03, § 53, ECHR 2006-XI; Members
(97) of the Gldani Congregation of Jehovah’s Witnesses v. Georgia,
no. 71156/01, § 96, 3 May 2007; and Milanović v. Serbia, no.
44614/07, § 84, 14 December
2010; see also, mutatis
mutandis, Osman,
cited above, § 116).
140. The
Court will therefore examine whether the respondent State, in
dealing with the first applicant’s case, has been in breach of its positive
obligations under Article 3 of the Convention.
(ii) Application of these principles to the present
case
141. The
Court notes at the outset that acts of violence in contravention of Article 3
of the Convention would normally require recourse to the application of
criminal-law measures against the perpetrators (see Beganović
v. Croatia, no. 46423/06, § 71, 25
June 2009,
as regards Article 3, and Sandra Janković, cited
above, § 47, as regards Article 8).
142. However,
in the present case most of the alleged perpetrators were children below
fourteen years of age, against whom, under the national system, it is not
possible to apply any criminal-law sanctions. Furthermore, in the specific
circumstances at issue, it might be that none of the acts complained of in
itself amounts to a criminal offence, but that nevertheless in their entirety
the incidents of harassment are incompatible with the requirements of Article 3
of the Convention. Therefore, the present case is to be distinguished from
cases concerning the State’s procedural obligations under criminal law in
respect of acts of ill-treatment contrary to Article 3 of the Convention, where
the State authorities are under a duty to conduct of their own motion a
thorough, effective and independent investigation.
143. The
present case concerns the issue of the State’s positive obligations in a different
type of situation, outside the sphere of criminal law, where the competent
State authorities are aware of a situation of serious harassment and even
violence directed at a person with physical and mental disabilities. It
concerns the alleged lack of an adequate response to such a situation in order
to properly address acts of violence and harassment that had already occurred
and to prevent any such further acts.
144. In
line with the above, the Court has examined firstly whether the
relevant authorities were or should have been aware of the situation of
harassment of and violence against the first applicant.
In this connection the Court notes that the
documents in the case file show that as early as 31 July 2008 the second
applicant informed the police of the ongoing harassment of her son by children
from the neighbourhood. She also informed the police of numerous further
incidents, including the burning of the first applicant’s hands with cigarettes
on 4 April 2009. In April 2009 she informed the Ombudswoman for Persons
with Disabilities of the same incident. Between May and July 2009 the police
informed the State Attorney’s Office as well as the competent social welfare
centre of the alleged abuse against the first applicant and by September 2009
the school authorities were also duly informed.
In view of the above, the Court is satisfied
that the domestic authorities were aware of the ongoing harassment of the first
applicant by children from his neighbourhood and children attending a nearby
school. The Court will therefore examine whether the relevant authorities took
all reasonable steps in the circumstances of the present case to protect the
first applicant from such acts.
In the present situation, where incidents of
violence have persisted over a certain period of time, the Court finds that the
relevant authorities failed to take sufficient steps to ascertain the extent of
the problem and to prevent further abuse taking place.
It is true that the police interviewed some of
the children allegedly involved in certain incidents and that the school
authorities discussed the problem with the pupils and their parents. However,
the Court finds that no serious attempt was made to assess the true nature of
the situation complained of, and to assess the lack of a systematic approach which
resulted in the absence of adequate and comprehensive measures. Thus, the
findings of the police were not followed by any further concrete action: no policy
decisions have been adopted and no monitoring mechanisms have been put
in place in order to recognise and prevent further harassment. The
Court is struck by the lack of any true involvement of the social services and
the absence of any indication that relevant experts were involved who could
have given appropriate recommendations and worked with the children concerned.
Likewise, no counselling has been provided to the first applicant in order to
aid him. In fact, the Court finds that, apart from responses to specific
incidents, no relevant action of a general nature to combat the underlying
problem has been taken by the competent authorities despite their knowledge
that the first applicant had been systematically targeted and that future abuse
was very likely to follow.
In view of this, the Court considers that the
competent State authorities have not taken all reasonable measures to prevent
abuse against the first applicant, notwithstanding the fact that the continuing
risk of such abuse was real and foreseeable.
There has accordingly been a violation of
Article 3 of the Convention in respect of the first applicant.
(b) As regards the second applicant
(i) General principles
While the essential object of Article 8 is to
protect the individual against arbitrary interference by public authorities, it
does not merely compel the State to abstain from such interference: in addition
to this negative undertaking, there may be positive obligations inherent in
effective respect for private or family life. These obligations may involve the
adoption of measures designed to secure respect for private life even in the sphere
of the relations of individuals between themselves (see X and Y v. the
Netherlands, cited above, § 23; Botta v. Italy, 24 February
1998, § 33, Reports 1998‑I; Mikulić v. Croatia, no.
53176/99, § 57, ECHR 2002‑I; and Sandra Janković, cited
above, § 44).
152. The
Court has previously held, in various contexts, that the concept of private
life includes a person’s psychological integrity. Under Article 8, States have in
some circumstances a duty to protect the moral integrity of an individual from acts
of other persons. The Court has also held that a positive obligation exists
upon States to ensure respect for human dignity and the quality of life in
certain respects (see L. v. Lithuania, no. 27527/03, § 56, ECHR 2007-IV,
and, mutatis mutandis, Pretty v. the United Kingdom, no. 2346/02,
§ 65, ECHR 2002-III).
(ii) Application of these principles to the present
case
The Court considers that the acts of ongoing
harassment have also affected the private and family life of the second
applicant. It has found that the State authorities have not put in place
adequate and relevant measures to prevent further harassment of the first
applicant. Likewise, the State authorities have failed to afford adequate protection
in that respect to the second applicant. Therefore, there has also been a
violation of Article 8 of the Convention in respect of the second applicant.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION
The applicants further complained that the acts
of abuse against them and the response of the competent authorities were also
discriminatory, on the basis of their Serbian ethnic origin and the first
applicant’s disability. They 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.”
Admissibility
1. The parties’ arguments
The Government argued that the applicants could
have brought a claim pursuant to the Prevention of Discrimination Act, by which
they would have been able to seek an acknowledgment of any possible
discrimination as set out in that Act, an order for the removal of the
discrimination and its consequences, as well as compensation.
The applicants contended in reply that
proceedings under the Prevention of Discrimination Act did not constitute an
effective remedy because they could not address the particular situation
complained of. Furthermore, they claimed that two years after that Act had been
passed, there was no relevant case-law showing either that citizens had felt
confident about instituting proceedings pursuant to the Act, or that the
proceedings that had been instituted had progressed with adequate speed.
2. The Court’s assessment
As regards Article 14 of the Convention, the
Court reiterates that it has no independent
existence, but plays an important role by complementing the other provisions of
the Convention and its Protocols, since it protects individuals placed in
similar situations from any discrimination in the enjoyment of the rights set
forth in those other provisions (see Dudgeon
v. the United Kingdom, 22 October 1981, § 67, Series A
no. 45; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and
28443/95, § 89, ECHR 1999-III; and Timishev v. Russia,
nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII). Although
the application of Article 14 does not presuppose a breach of those provisions
– and to this extent it is autonomous – there can be no room for its
application unless the facts at issue fall within the ambit of one or more of
the latter (see, for example, Van Buitenen v. the Netherlands,
no. 11775/85, Commission decision of 2 March 1987, and Cha’are Shalom Ve
Tsedek v. France [GC], no. 27417/95, § 86, ECHR 2000‑VII).
158. The Court has also held
that even in a situation where the substantive provision is not applicable,
Article 14 may still be applicable (see Savez crkava
“Riječ života” and Others v. Croatia, no. 7798/08, § 58, 9 December 2010). Consequently,
admissibility issues concerning Article 14 may be assessed separately.
As to the present case, the Court will examine
under Article 14 the issue of exhaustion of domestic remedies in relation to
the Prevention of Discrimination Act. In this connection the Court notes that
it has already examined the issue of exhaustion of domestic remedies as regards
a discrimination complaint separately from the exhaustion issues concerning the
main complaint (see Valkov and Others v. Bulgaria, nos. 2033/04,
19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, §§ 104-108, 25 October 2011).
This approach goes hand in hand with the principle that where a substantive Article of the
Convention or its Protocols has been relied on both on its own and in
conjunction with Article 14 and a separate breach has been found of the
substantive Article, the Court may not always consider it necessary to examine
the case under Article 14 as well, though the position is otherwise if a clear
inequality of treatment in the enjoyment of the right in question is a
fundamental aspect of the case (see Dudgeon, cited above, § 67; Chassagnou
and Others, cited above, § 89; and Timishev,
cited above, § 53).
As regards the present case, the Court notes
that the Prevention of Discrimination Act contains specific reference to
discrimination based on health condition and invalidity, as well as on ethnic
origin (see section 1 of the Act). It provides for a range of remedies,
including the acknowledgment of discrimination, a ban on discriminatory acts
and compensation for damage. Remedies may also be used against the national
authorities in the event of their alleged failure to take action (see paragraph
74 above).
Protection against discrimination is to be
sought before the ordinary courts, and an appeal against the first-instance
judgment is provided for, as well as a constitutional complaint. The right not
to be discriminated against is also guaranteed by the Croatian Constitution and
the Convention is directly applicable in Croatia. In order to comply with the
principle of subsidiarity, applicants, before bringing their complaints before
the Court, have first to afford the national courts the opportunity of
remedying their situation and addressing the issues they wish to bring before
the Court.
Against the above background, the Court
considers that an action pursuant to the provisions of the Prevention of
Discrimination Act represents an effective domestic remedy and that proper use
of that remedy could have led to an acknowledgment of the violation alleged and
an award of damages. In the event that the applicants’ claim was not successful
before the ordinary courts, they would have been able to lodge a constitutional
complaint and have their complaints examined by the Constitutional Court as
well. However, the applicants failed to make use of the remedies available to
them.
It follows that this complaint must be rejected
under Article 35 §§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicants alleged that they had no
effective remedy in respect of their complaints under the Convention. They
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.”
A. Admissibility
1. As regards the applicants’ complaints under
Articles 3 and 8 of the Convention
The Court notes that this complaint is linked
to the one examined above under Articles 3 and 8 of the Convention and must
therefore likewise be declared admissible.
2. As regards the applicants’ complaint under Article
14 of the Convention
The Court has already established that in
respect of their complaint under Article 14 of the Convention, the applicants
had at their disposal an effective remedy – an action pursuant to the
provisions of the Prevention of Discrimination Act – which they failed to use.
It follows that this part of the application is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Merits
The applicants argued that they had no
effective remedy by which to obtain protection against the acts of harassment
and violence. The Court notes that the Government suggested a number of
remedies allegedly at their disposal in that connection. However, the Court has
established that none of the remedies referred to by the Government could have
addressed the applicants’ situation in connection with their complaints under Articles 3
and 8 of the Convention.
Therefore, the Court considers that the
applicants had no effective remedy available in respect of their complaints
under Articles 3 and 8 of the Convention. Accordingly, there has been a violation
of Article 13 in that respect.
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 applicants claimed 10,000 euros (EUR) each
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 applicants 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 applicants
jointly EUR 11,500 in respect of non-pecuniary damage, plus any tax that
may be chargeable to them.
B. Costs and expenses
The applicants, who had been granted legalaid under the Council of Europe’s scheme,
also claimed EUR 1,206 for the costs and expenses incurred before the domestic
courts and EUR 4,997.13 for those incurred before the Court.
The Government submitted that the applicants
had not provided the itemised particulars of the 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 are
reasonable as to quantum. In the present case, regard being had to the documents
in its possession and the above criteria, the Court considers that the costs
the applicants incurred in connection with the complaints they made before the
national authorities about their harassment were essentially aimed at remedying
the violation of the Convention rights alleged before the Court, and that these
costs may be taken into account in assessing the claim for costs (see Scordino
v. Italy (no. 1) [GC], no.
36813/97, § 284, ECHR 2006‑V, and Medić
v. Croatia, no. 49916/07, § 50, 26 March 2009).
Regard being had to the information in its possession and the above criteria,
the Court awards the applicants jointly EUR 1,206 for the costs and
expenses incurred in the domestic proceedings and EUR 3,500 for those before
the Court, less EUR 850 already received by way of legalaid from the
Council of Europe, plus any tax that may be chargeable to the applicants on
that amount.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the complaints under Articles 3
and 8, as well as the complaint under Article 13 of the Convention in so far as
it relates to the complaints under Articles 3 and 8, admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention in respect of the first applicant;
3. Holds that there has been a violation of
Article 8 of the Convention in respect of the second applicant;
4. Holds that there has been a violation of
Article 13 of the Convention;
5. Holds
(a) that the respondent State is to pay the
applicants jointly, 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 the currency
of the respondent State at the rate applicable on the date of settlement:
(i) EUR 11,500 (eleven thousand five hundred
euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) EUR 4,706 (four thousand seven hundred and six
euros), less EUR 850 (eight hundred and fifty euros), plus any tax that may be
chargeable to the applicants, 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;
6. Dismissesthe remainder of the applicants’
claim for just satisfaction.
Søren Nielsen Anatoly
Kovler
Registrar President
