EHRM, 05-03-2009, nr. 38478/05

The Government firstly submitted that Article 8 was not applicable in the present case. They argued that the relationship between the act of violence in question and the applicant's private and family life was too remote to fall within the scope of that Article since the event complained of had not created any continuous situation which would have affected the applicant's private or family life. In the Government's view, the applicant did not belong to any of the vulnerable categories which required special protection. The alleged attack on the applicant had not lasted for a prolonged period of time and the State authorities could not have been aware that the applicant was a victim of violence. Furthermore, the Government argued that the facts as submitted by the applicant could not be accepted as established since the national courts had found that the applicant had been subjected only to verbal violence.

The applicant had no doubts that Article 8 was applicable in the present case. She argued that she belonged to a vulnerable category as being a single woman in patriarchal surroundings. She stressed particular circumstances of the present case: that she had been attacked in the building where she had lived; that when attacked she had been alone, while there had been several attackers; that she had been pushed down the stairs, which had been very dangerous; that one of her attackers had spat at her, which showed loathing and hatred; that she had been hit and insulted verbally.

The Court must determine whether the right asserted by the applicant falls within the scope of the concept of ‘respect’ for ‘private life’ set forth in Article 8 of the Convention. In the Court's view there is no doubt that the events giving raise to the present application pertain to the sphere of private life within the meaning of Article 8 of the Convention. Indeed, the physical and moral integrity of an individual is covered by the concept of private life. The concept of private life extends also to the sphere of the relations of individuals between themselves. There appears, furthermore, to be no reason of principle why the notion of ‘private life’ should be taken to exclude attacks on one's physical integrity (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91).

The facts of the case accordingly fall within the ambit of Article 8.

The Government further requested the Court to declare this part of the application inadmissible for failure to exhaust domestic remedies. Relying on the Court's decision in the case of Duchonova v. the Czech Republic ((dec), no. 29858/03, 2 October 2006), they submitted that the applicant could have brought a civil action for damages in respect of the injuries and fears she had suffered. They further argued that the applicant could have brought a private prosecution against the attackers.

The applicant argued that the case of Duchonova (cited above) was not comparable to the present case in view of the gravity of the offences at issue. Furthermore, a civil claim for damages was not an adequate remedy for the violation alleged. The only adequate forms of redress in respect of an act of violence were criminal-law sanctions. As regards criminal proceedings, she argued that she had taken all the necessary steps to have the attackers criminally prosecuted.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. However, Article 35 § 1 does not require that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51–52, Reports of Judgments and Decisions 1996-VI, and Barta v. Hungary, no. 26137/04, § 45, 10 April 2007).

The Court notes firstly that from the Government's submissions concerning a civil action for damages it is not clear against whom such an action is to be brought. As to their referral to the case of Duchonova, the Court notes that the criminal offences complained of by the applicant in that case were those of defamation and blackmail and that therefore, the case of Duchonova is not comparable to the present case, which concerns physical violence against the applicant.

The Court notes further that it would be very difficult for the applicant to prove her case in the event of her bringing civil proceedings against the alleged attackers, seeking damages for the injuries sustained, without their prior criminal conviction. However, even assuming that the applicant could have obtained damages in civil proceedings, the Court is inclined to believe that effective deterrence against attacks on the physical integrity of a person requires efficient criminal-law mechanisms that would ensure adequate protection in that respect (see, mutatis mutandis, X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91; August v. the United Kingdom (dec.), no. 36505/02, 21 January 2003; and M.C. v. Bulgaria, no. 39272/98, § 50, ECHR 2003-XII).

As to the Government's arguments concerning the possibility of a private prosecution, the Court observes that the applicant complained to the public prosecutor of the treatment to which she claimed to have been subjected. Furthermore, acting as a subsidiary prosecutor, she lodged with a court a request for an investigation in respect of her attackers. In the Court's view, these remedies could have resulted in the identification and the punishment of those responsible. The applicant must therefore be regarded as having brought the substance of her complaint to the notice of the national authorities and as having sought redress through the national channels for her complaint.

The Court finds that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The applicant argued that the national authorities had failed to afford her adequate protection against violence inflicted by private individuals. In that connection she maintained that Croatian criminal law was insufficient when it came to privately inflicted violence. It denied her adequate protection since the attackers had not been prosecuted by the State Attorney's Office of its own motion and her attempts for pursuing her criminal complaint against her attackers remained futile. She further argued that her request for an investigation had been comprehensible and contained all the required information. The competent investigation judge had failed to instruct her about the precise alleged insufficiencies of her request.

As regards the minor-offences proceedings, the applicant argued that these proceedings had not at all concerned the physical assault on her, but only verbal abuse, and that they had been terminated because the prosecution had become time-barred. In this connection she pointed out that the statutory limitation for a minor offence was two years and that the Split Minor-Offences Court had scheduled the first hearing for 4 February 2005, about a year and a half after the event in question had taken place, thus causing the prosecution to become time-barred after a short period.

The Government argued that the Convention did not guarantee the right to have criminal proceedings instituted against third persons. They argued that in the present case the police had reacted promptly and submitted a request for minor-offences proceedings to be instituted against the attackers. In those proceedings all the relevant facts had been established and it had been concluded that the individuals in question had only verbally abused the applicant. They further maintained that the State's positive obligations could not require the criminal prosecution of the attackers or their conviction. Therefore, the fact that the police had requested the institution of minor-offences proceedings had been sufficient.

The competent State Attorney's Office had concluded that the applicant had sustained bodily injuries of a lesser nature and that there had been no need for it to institute criminal proceedings against the offenders of its own motion. Furthermore, the applicant had had the possibility of bringing a private prosecution, which she had failed to do. Instead, she had submitted an incomprehensible request for an investigation, which had been declared inadmissible.

The Government admitted that the applicant could have had difficulties in complying with the strict formal requirements of the rules of criminal procedure. However, she could have sought legal aid from the Croatian Bar Association or the State authorities, which she had failed to do.

While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for private and family life and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y v. the Netherlands, cited above, §§ 23–24, and Mikulić v. Croatia, no. 53176/99, § 57, ECHR 2002-I and 27).

As regards respect for private life, the Court has previously held, in various contexts, that the concept of private life includes a person's physical and psychological integrity. Under Article 8 the States have a duty to protect physical and moral integrity of an individual from other persons. To that end they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see X and Y v. the Netherlands, cited above, §§ 22 and 23; Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247-C; D.P. and J.C. v. the United Kingdom, no. 38719/97, § 118, 10 October 2002; M.C. v. Bulgaria, cited above, §§ 150 and 152; and Bevacqua and S. v. Bulgaria, cited above, § 65).

The Court reiterates that its task is not to substitute itself for the competent Croatian authorities in determining the most appropriate methods for protecting the individuals from the attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. The Court will therefore examine whether Croatia, in handling the applicant's case, has been in breach of its positive obligation under Article 8 of the Convention (see, mutatis mutandis, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24).

As to the present case, the Court notes that the applicant alleged that three individuals had confronted her in front of the flat in question and shouted obscenities at her, and one of them had kicked her several times, pulled her by her clothes and hair and thrown her down the stairs. The medical documentation shows that the applicant sustained blows to her elbow and tailbone. The Court attaches importance to the fact that the attack occurred in connection with the applicant's attempt to enter a flat in respect of which she had obtained a court decision allowing her to occupy it. That decision was enforced with the assistance of the court's officials only a day before the event in question. The attackers also threatened to kill her if she returned. The Court considers that acts of violence such as those alleged by the applicant require the States to adopt adequate positive measures in the sphere of criminal-law protection. In this connection it stresses that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see, mutatis mutandis, Selmouni v. France, [GC], no. 25803/94, § 101, ECHR 1999-V, and Mayeka and Mitunga v. Belgium, no. 13178/03, § 48, ECHR 2006-XI).

As to the criminal-law mechanisms provided in the Croatian legal system the Court notes that violent acts committed by private individuals are prohibited in a number of separate provisions of the Criminal Code. The Court observes further that the Croatian criminal law distinguishes between criminal offences to be prosecuted by the State Attorney's Office, either of its own motion or upon a private application, and criminal offences to be prosecuted by means of a private prosecution. The latter category concerns criminal offences of a lesser nature. The Court also notes that the applicant alleged that the acts of violence committed against her constituted, inter alia, the criminal offences of violent behaviour and making threats. Prosecution in respect of both these offences is to be undertaken by the State Attorney's Office, of its own motion in the case of the former offence and on a private application in the case of the latter.

The Court further observes that the Croatian legal system also envisages the injured party acting as a subsidiary prosecutor. In respect of criminal offences for which the prosecution is to be undertaken by the State Attorney's Office, either of its own motion or upon a private application, where the Office declines to prosecute on whatever ground, the injured party may take over the prosecution as a subsidiary prosecutor. In contrast, a private prosecution is undertaken from the beginning by a private prosecutor. Furthermore, a criminal complaint lodged in due time in respect of a criminal offence subject to private prosecution is to be treated as a private prosecution (see Article 48(3) of the Code of Criminal Procedure).

In the specific circumstances of the present case, without overlooking the importance of protection from attacks on one's physical integrity, the Court cannot accept the applicant's arguments that her Convention rights could be secured only if the attackers were prosecuted by the State and that the Convention requires State-assisted prosecution. In this connection the Court is satisfied that in the present case domestic law afforded the applicant a possibility to pursue the prosecution of her attackers, either as a private prosecutor or as the injured party in the role of a subsidiary prosecutor, and that the Convention does not require State-assisted prosecution in all cases.

The Court will next examine whether or not the impugned regulations and practices, and in particular the domestic authorities' compliance with the relevant procedural rules, as well as the manner in which the criminal-law mechanisms were implemented in the instant case, were defective to the point of constituting a violation of the respondent State's positive obligations under Article 8 of the Convention.

The Court notes that in her criminal complaint of 2 October 2003, filed with the Split Municipality State Attorney's Office, the applicant had already submitted a very detailed description of the events in question, alleging that they entailed a number of offences. When she was informed that the State Attorney's Office had declined to prosecute of its own motion, the applicant, pursuant to the relevant provisions of the Code of Criminal Procedure, lodged a request for an investigation with the competent investigation judge of the Split County Court. As to the Government's contention that the applicant should have brought a private prosecution against the three attackers on charges of causing bodily injury of a lesser nature, the Court notes that the act of violence in question could have been differently classified under domestic law. In her initial criminal complaint, as well as in her subsequent request for an investigation, the applicant, inter alia, alleged that the acts against her constituted the criminal offences of violent behaviour and making serious threats. These allegations were corroborated with a detailed description of the acts in question, which consisted in her being kicked and pushed by three individuals, who shouted insults and obscenities at her and threatened her, saying that she would disappear and be disposed of if she were to come back. In the Court's view, the applicant's opinion that these acts went beyond the criminal offence of causing bodily injury of a lesser nature might not have been seen as unfounded. Therefore, the applicant's decision not to bring a private prosecution on the charges of causing bodily injury of a lesser nature but instead to request an investigation against her attackers on charges of violent behaviour and making serious threats was in compliance with the rules of the Code of Criminal Procedure concerning the role of the injured party as a subsidiary prosecutor.

The Court observes next that in her initial request for an investigation the applicant had already made it clear that she sought an investigation, inter alia, into her allegations that on 6 June 2003 three individuals had attacked her. She named the individuals concerned and listed their addresses. She alleged that the acts of violence against her constituted, inter alia, the criminal offences of making threats and violent behaviour. She submitted relevant medical documentation in support of her allegations. However, the domestic authorities declared her request inadmissible as being incomplete, without specifying exactly what formal requirements were not met.

It might be true that the applicant's submission did not strictly follow the exact form required for requests lodged with the State Attorney's Office in criminal proceedings. In this connection the Court notes that the applicant was not legally represented in the proceedings at issue. She is unemployed and obviously lacking the means for legal representation at her own expense. Furthermore, under the relevant provisions of the Code of Criminal Procedure (Article 60), the applicant had no right to legal aid since the alleged criminal offences did not carry a sentence of imprisonment exceeding three years.

The Court also notes that there had already been a police report on the incident, which also described the acts of violence against the applicant, and that the Split Municipality State Attorney's Office had also produced an account of the event in question. Therefore, it is difficult to accept the conclusion of the Split County Court investigation judge that the applicant's request for an investigation was to be dismissed on the grounds that it was incomprehensible and incomplete. On the contrary, the Court finds that the applicant had made it clear that she was seeking an investigation into an act of violence against her. She showed great interest in her case and made serious attempts to have the attackers prosecuted. Her submissions were sufficient to enable the competent investigation judge to proceed upon her request. They contained all the information required under Article 188(3) of the Code of Criminal Procedure, namely the identification of the person against whom the request was submitted, a description and the legal classification of the offence at issue, the circumstances confirming a reasonable suspicion that the person concerned had committed the offence at issue, and the existing evidence.

As to the Government's assertion that the applicant had failed to bring a private prosecution, the Court notes that the applicant did lodge a timely criminal complaint with the Split Municipality State Attorney's Office (see paragraph 17 above). On 11 November 2003 that office decided not to open an official investigation on the ground that the act in question qualified as a criminal offence for which a prosecution had to be brought privately by the victim (see paragraph 18 above). Under Article 48(3) of the Code of Criminal Procedure, in these circumstances the applicant's criminal complaint had to be treated as a private prosecution (see paragraph 25 above). However, the competent authorities completely ignored that rule and failed to proceed with the applicant's criminal complaint.

The above analysis shows firstly that the relevant State authorities decided not to prosecute the alleged perpetrators of an act of violence against the applicant. Furthermore, the relevant authorities did not allow the applicant's attempts at a private prosecution. Lastly, as to the Government's contention that adequate protection was given to the applicant in the minor-offences proceedings, the Court notes that those proceedings were terminated owing to statutory limitation and were thus concluded without any final decision on the attackers' guilt. In view of these findings, the Court holds the view that the decisions of the national authorities in this case reveal inefficiency and a failure to act on the part of the Croatian judicial authorities.

In the Court's view, the impugned practices in the circumstances of the present case did not provide adequate protection to the applicant against an attack on her physical integrity and showed that the manner in which the criminal-law mechanisms were implemented in the instant case were defective to the point of constituting a violation of the respondent State's positive obligations under Article 8 of the Convention.

In view of that finding, the Court considers that no separate issue remains to be examined under Article 3 of the Convention.