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KONTROVA v. SLOVAKIA - 7510/04 [2007] ECHR 419 (31 May 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/419.html
Cite as:
[2007] ECHR 419
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FOURTH
SECTION
CASE OF
KONTROVÁ v. SLOVAKIA
(Application
no. 7510/04)
JUDGMENT
STRASBOURG
31
May 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kontrová v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K.
Traja,
Mr L. Garlicki,
Ms L. Mijović,
Mr J.
Šikuta, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 10 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 7510/04) against the Slovak
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Slovakian national, Ms Dana Kontrová
(“the applicant”), on 20 February 2004.
The
applicant was represented by Ms I. Rajtáková, a lawyer
practising in Košice. The Slovak Government (“the
Government”) were represented by their Agent, Ms M. Pirošíková.
The
applicant alleged, in particular, that the police had failed to take
appropriate action to protect her children's lives and her private
and family life despite knowing of her late husband's abusive
behaviour and fatal threats and that it had been impossible for her
to obtain compensation for the non-pecuniary damage she had suffered.
She relied on Articles 2, 6 and 8 of the Convention. The Court also
decided to examine the application of its own motion under Article 13
of the Convention, taken in conjunction with Articles 2 and 8 of the
Convention.
By
a decision of 13 June 2006 the Court declared the application partly
admissible.
The
applicant and the Government each filed further written observations
(Rule 59 § 1 of the Rules of Court). The Chamber having decided,
after consulting the parties, that no hearing on the merits was
required (Rule 59 § 3 in fine), the parties replied in
writing to each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1974 and lives in Michalovce.
A. The factual background
The
applicant was married. The marriage produced two children: a daughter
who was born in 1997 and a son who was born in 2001.
On
2 November 2002 the applicant filed a criminal complaint against her
husband with the Michalovce District Police Department (Obvodné
oddelenie Policajného zboru). She accused him of having
assaulted and beaten her with an electric cable the previous day. She
submitted a medical report by a trauma specialist indicating that her
injuries would incapacitate her from work for up to seven days. The
applicant also stated that there was a long history of physical and
psychological abuse by her husband.
At
an unspecified time between 15 and 18 November 2002 the applicant and
her husband went to the District Police Station. They sought to
withdraw the applicant's criminal complaint. A police officer, Mr H.,
advised them that, in order to avoid a prosecution, they would have
to produce a medical report showing that after the incident on
1 November 2002 the applicant had not been incapacitated
from work for more than six days. The applicant produced such a
report on 21 November 2002.
On
26 November 2002 officer H. decided that the above matter was to be
dealt with under the Minor Offences Act (Law no. 372/1990 Coll.) and,
under section 60(3)(a) of that Act, decided to take no further action
(odloZenie veci).
During
the night of 26 to 27 December 2002 a relative of the applicant
called the emergency service of the District Police Department to
report that the applicant's husband had a shotgun and was threatening
to kill himself and the children. The applicant herself made a
similar phone call later that night. The phone calls were received by
a police officer, Mr B., who instructed a police officer, Mr P.Š.,
to arrange for a police patrol to visit the premises. The patrol
found the applicant in the village of Tušická Nová
Ves. The applicant's husband had left the scene prior to their
arrival. The policemen took the applicant to her parents' home and
invited her to come to the police station the following morning so
that a formal record of the incident could be drawn up.
In
the morning of 27 December 2002 the applicant, accompanied by her
brother, went to the Trhovište District Police Station, where
she spoke to a police officer, Mr M.Š.
In
the morning of 31 December 2002 the applicant and her brother went to
the Michalovce District Police Station, where she talked to officer
H. She enquired about her criminal complaint of 2 November 2002 and
also mentioned the incident of the night of 26 to 27 December 2002.
On
31 December 2002 between 11 a.m. and 11.15 a.m. the applicant's
husband shot their two children and himself dead.
B. The criminal proceedings
On
31 January 2003 the Košice Branch of the Police Inspection
Service (Úrad inšpekčnej sluZby Policajného
zboru – “the Inspection Service”) charged
officer M.Š. with abuse of public authority (Article 158 § 1
(c) of the Criminal Code) on the ground that on 27 December 2002 he
had failed to accept and duly register the applicant's criminal
complaint and to commence criminal proceedings against the
applicant's husband immediately.
On
3 February 2003 the Inspection Service charged officer P.Š.
with dereliction of duty (Article 159 § 1 and 2 (b) of the
Criminal Code) on the ground that on the night of 26 to 27 December
2002 he had failed to take appropriate action in response to the
emergency calls from the applicant and her relative, in particular,
to launch a criminal investigation, to keep a proper record of
the emergency calls and to advise the next shift of the situation and
of the fact that the applicant would be visiting the police station
the following morning to file a formal criminal complaint.
On
7 February 2003 the Inspection Service charged officer H. with abuse
of public authority (Article 158 § 1 (a) of the Criminal Code)
for altering records pertaining to the applicant's criminal complaint
of 2 November 2002 and arbitrarily treating it as a minor
offence calling for no further action.
On
12 February 2003 the Inspection Service commenced criminal
proceedings against an unknown police officer for abuse of public
authority (Article 158 § 1 (a) of the Criminal Code) in
connection with an allegation that on 31 December 2002 he had
wrongfully refused to register a criminal complaint from the
applicant concerning the incident of the night of 26 to 27 December
2002. These proceedings later resulted in charges against officer H.
On the same day the Inspection Service charged officer B. with abuse
of public authority (Article 158 § 1 (a) of the Criminal Code)
on the ground that on the night of 26 to 27 December 2002 he had
failed to take appropriate action in connection with the allegations
that the applicant's husband had threatened violence. He was accused,
inter alia, of having omitted to carry out a search in the
register of firearms and firearms licence holders.
On
30 April 2003 the Prešov District Military Prosecutor
(Vojenský obvodný prokurátor)
discontinued the proceedings that had been commenced on 12 February
2003 and had subsequently led to the charges against officer H. After
examining documentary evidence and testimony by the applicant, the
accused and witnesses, the prosecutor found that the purpose of the
applicant's conversation with officer H. on the morning of
31 December 2002 had not been to lodge a new formal criminal
complaint against her husband. She had merely sought information
about the state of the proceedings further to her criminal complaint
of 2 November 2002 and there was no suspicion that officer H. had
committed any criminal offence.
On
28 July 2003 the Košice Regional Investigation Office (Krajský
úrad vyšetrovania) discontinued the criminal
proceedings instituted against officer H. on 7 February 2003.
Observing that he had acted in good faith and in accordance with the
applicant's express wishes, the investigator decided that the actions
of officer H. had not involved the element of social gravity that was
requisite in order to constitute a criminal offence. The investigator
also observed that officer H. had already been discharged from the
police and that therefore no disciplinary proceedings could be
brought against him. The applicant challenged this decision by means
of a complaint which the District Military Prosecutor declared
inadmissible on 15 August 2003, finding under Article 142 §
1 of the Code of Criminal Procedure (CCP) that she had no right to
make it.
On
4 August 2003 the District Military Prosecutor summoned officers B.,
P.Š. and M.Š. for trial in the Michalovce District
Court (Okresný súd) on a charge of negligent
dereliction of duty (Article 159 §§ 1 and 2 (b) of the
Criminal Code) in connection with the above events. The summons set
out in detail the internal regulations of the Ministry of the
Interior the officers were alleged to have breached.
On
20 October 2003, following a hearing on the same day in which the
applicant took part through the intermediary of her lawyer, the
District Court dismissed the summons. It found that the criminal
offence of dereliction of duty presupposed a complete or enduring
failure to discharge the duty. Merely impeding the discharge of the
duty was not enough. It found that in the present case the officers'
actions did not amount to such a failure to discharge their duty
and that the connection between their actions and the tragedy of 31
December 2002 was not sufficiently direct.
The
applicant appeared in the District Court as a witness and was not
served with a copy of the judgment.
On
21 January 2004 the Košice Regional Court (Krajský
súd) dismissed an appeal by the District Military
Prosecutor against the judgment of 20 October 2003. No further appeal
was available.
The
applicant was neither officially informed about the appellate
proceedings nor served with a copy of the Regional Court's judgment.
The
Prosecutor General, however, challenged the Regional Court's decision
of 21 January 2004 by lodging a complaint in the interests of the law
(sťaZnosť pre porušenie zákona) in the
Supreme Court (Najvyšší súd).
On
29 September 2004 the Supreme Court quashed both the Regional Court's
decision of 21 January 2004 and the District Court's judgment of 20
October 2003. The Supreme Court found that the lower courts had
assessed the evidence illogically, that they had failed to take
account of all the relevant facts and that they had drawn incorrect
conclusions. The Supreme Court found that it was clear that the
accused officers had acted in dereliction of their duties. It
concluded that there was a direct causal link between their
unlawful actions and the fatal consequence. The Supreme Court
remitted the case to the District Court for reconsideration and
pointed out that, pursuant to Article 270 § 4 of the CCP, the
latter was bound by its above legal views.
On
14 March 2006 the District Court held a hearing in which the
applicant took part in the capacity of a witness. Following the
hearing, on the same day, the District Court found officers B., P.Š.
and M.Š. guilty as charged and sentenced them to,
respectively, six, four and four months' imprisonment. All sentences
were suspended for 12 months. It was found that the accused had
negligently breached the applicable service regulations and had
thereby caused the death of the applicant's children. When
determining the sentence, the District Court took into account inter
alia the fact that the accused had thus far been leading honest
lives, their work appraisals were positive and officers B. and M.Š.
had already been discharged from service in the police. All the
accused and the public prosecution service appealed. Officer B. later
withdrew his appeal.
On
26 September 2006 the Regional Court heard and dismissed the
outstanding appeals. It found that the District Court had adequately
established and correctly assessed the facts and had drawn accurate
legal conclusions both as regards the guilt and the sentences. No
ordinary remedy was available against the Regional Court's judgment.
C. The first set of proceedings in the Constitutional
Court
On
26 February 2003 the applicant, who was represented by a lawyer,
lodged a complaint under Article 127 of the Constitution with the
Constitutional Court (Ústavný súd). She
formally directed her complaint against the District Police
Department, maintaining that its officers' failure to act had led to
a violation of her right to protection of her personal integrity
(Article 16 § 1 of the Constitution), her right to protection
from unjustified interference with her private life (Article 19 §
2 of the Constitution) and her right to legal protection (Article 46
§ 1 of the Constitution). She asserted that the police had been
well aware of the situation that had preceded the tragedy of 31
December 2002 and, in breach of their positive obligations, had
failed to take the necessary action. She claimed that responsibility
for this failure lay with the District Police Department. She also
maintained that the criminal proceedings which were currently pending
could not afford her complete redress for the damage she had
sustained.
On
2 July 2003 a three-judge bench of the Constitutional Court declared
the complaint inadmissible. It observed that the Constitutional Court
only had jurisdiction if the matter concerned did not fall within the
jurisdiction of another authority. Its power to award just
satisfaction in respect of non-pecuniary damage could only be
exercised if the Constitutional Court had substantive jurisdiction
over the matter. In the present case the primary issue was whether
the officers who had dealt with the applicant's case had complied
with the applicable regulations. That issue fell within the
jurisdiction of the ordinary courts and was being examined in the
criminal proceedings which were currently under way and in which the
applicant could claim standing to intervene as an aggrieved party. A
ruling on that issue could nevertheless also be sought before the
civil courts. To that end, the bench observed that the applicant's
range of options was not limited to actions of the type specifically
provided for by statute. The bench concluded that, in these
circumstances, the applicant's complaint was premature and the
Constitutional Court had no jurisdiction to entertain it.
The
presiding judge, however, did not share the majority view and gave a
dissenting opinion. According to him, in view of its primary purpose,
namely to uphold constitutionality, the Constitutional Court was free
to examine complaints under the legal provisions which it considered
to be the most relevant. The present case was to be examined
primarily from the standpoint of the right to life and, in
particular, the positive obligations inherent in that right. Contrary
to the bench's finding, and in breach of the positive obligations in
question, there were no remedies available to the applicant under
civil or criminal law permitting her to claim and obtain adequate and
sufficient redress for her alleged non pecuniary damage. He
pointed out that not even the bench had clearly identified the
remedies available to the applicant for that purpose. Finally, the
presiding judge said that the principle that the Constitutional
Court's jurisdiction was subsidiary, which was set out in Article 127
of the Constitution, was to be interpreted with a degree of
flexibility in the light of the circumstances of each particular
case. In his view, the Constitutional Court was the only authority to
which the applicant could have made her claim for compensation for
non pecuniary damage in the present case. It therefore should
not have been precluded from examining the case by the possible
existence of other remedies which in any event were not complete.
D. The second set of proceedings in the Constitutional
Court
On
26 February 2004 the applicant, who was represented by a lawyer,
lodged a fresh complaint against the District Police Department with
the Constitutional Court. She reiterated the arguments she had
submitted in the first complaint and added that the criminal
proceedings had ended without producing any positive results in
respect of her complaints. She maintained that she had no remedy
before any other authority as regards the non-pecuniary damage she
had suffered. She concluded that the Constitutional Court was
therefore called upon to deal with the merits of her case. She
alleged a violation of her children's right to life (Article 15 §§
1 and 2 of the Constitution and Article 2 § 1 of the
Convention). She further alleged a violation of her right to
protection of her personal integrity and privacy (Article 16 § 1
of the Constitution), her right to protection from unjustified
interference with her private and family life (Article 19 § 2 of
the Constitution), her right to legal protection (Article 46 § 1
of the Constitution), her right to security of person (Article 5 of
the Convention) and her right to respect for her private and family
life (Article 8 of the Convention).
On
8 September 2004 the Constitutional Court declared the complaint of
26 February 2004 inadmissible, holding that it had no jurisdiction to
entertain it. In this context the Constitutional Court held that the
principal questions of whether there had been any illegal action
causing damage to the applicant and who was responsible for it fell
to be determined by the ordinary courts. More specifically, the
question of whether a crime had been committed in connection with the
events complained of was to be determined in criminal proceedings.
The Constitutional Court noted that in the criminal proceedings in
the present case the applicant had failed to claim standing as an
aggrieved party, which would have given her a series of procedural
rights enabling her to influence their outcome. The fact that the
criminal courts had sole jurisdiction in the matter meant that the
Constitutional Court had power to intervene only if the criminal
courts had acted manifestly arbitrarily. The applicant had, however,
put forward no arguments to that effect. The Constitutional Court
further held that, in any event, in so far as the complaint pertained
to the District Police Department's failure to take action in
November and December 2002, it had been submitted outside the
statutory two-month time-limit. Furthermore, the applicant had no
right of petition, either of her own or on behalf of her late
children, in respect of the alleged violation of their right to life.
Finally, part of the second complaint was in any event inadmissible
as it raised issues that were res judicata by virtue of the
decision of 2 July 2003.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Protection of personal integrity
The
law concerning protection of personal integrity under Articles 11
et seq. of the Civil Code is summarised in the decision of 13 June
2006 in the present case. In addition, the following judicial
decisions are of relevance.
In
an action in the Nitra District Court (file no. 10C 142/2002)
a mother claimed, among other things, financial compensation for
non-pecuniary damage in connection with the death of her daughter.
She relied on the previous conviction for manslaughter of a car
driver who had run over her daughter.
In a
judgment of 15 May 2006 the District Court accepted that the
plaintiff had suffered damage of a non-pecuniary nature and awarded
her 200,000 Slovakian korunas by way of compensation.
In
an action in the Poprad District Court (file no. 9C 688/2002) Mrs M.
brought claims for protection of personal integrity against the
State, in the person of the police, in connection with the death of
her husband. She relied on a penal order (trestný rozkaz)
of that court of 18 October 2000 in which a police officer had
been found guilty of manslaughter under Article 224 §§
1 and 2 of the Criminal Code on the ground that, while questioning
the applicant's husband at a police station, he had failed to secure
his service gun in an appropriate manner. He had thereby enabled the
applicant's husband to grab the gun and shoot himself dead.
Mrs
M. claimed, inter alia, financial compensation for the
non-pecuniary damage suffered by herself and her late husband. She
later withdrew the claim while at the same time submitting a similar
claim in the name of her and her husband's daughter, Miss M.
In a
judgment of 31 May 2006 the District Court allowed the withdrawal of
the claim by Mrs M. and discontinued the proceedings in respect of
that claim. At the same time, it dismissed the claim in the name of
Miss M. The reasons for dismissing her claim were multiple. The State
was not the defendant to be sued in the present case, the police
having their own legal personality and the capacity to be sued. The
claim was statute-barred. And finally, at the time of the tragedy
Miss M. had only been 10 months old and had mainly not been living
with her father. She therefore could not have suffered any trauma.
The action is still pending on appeal.
B. Code of Criminal Procedure (Law no. 141/1961 Coll.,
as applicable at the relevant time)
Pursuant
to Article 2 §§ 3 and 4, the public prosecution service is
obliged to prosecute all criminal offences of which it learns, unless
a statute or an international treaty provides otherwise. Authorities
involved in prosecution, that is to say the police, investigators,
public prosecution service and courts, are obliged to act on their
own initiative.
If
a criminal complaint does not contain information excluding the
possibility that a criminal offence was committed, and if there are
no special circumstances, the police or investigator, as the case may
be, are obliged to commence criminal prosecution immediately (Article
160 § 1).
C. Criminal Code (Law no. 140/1961 Coll., as applicable
at the relevant time)
The
concept of a criminal attempt is defined in Article 8. Conduct which
is dangerous for society, which immediately leads to the completion
of a criminal offence and which the culprit carries out with the
intention to commit a criminal offence is considered a criminal
attempt provided that the offence itself has not been completed. A
criminal attempt is liable to the same punishment as the completed
offence to which it leads.
D. Police Corps Act of
1993 (Law no. 171/1993 Coll., as amended)
The
Act governs the organisation and powers of the police. Pursuant to
section 2(1)(a), (b) and (d) the police serve, inter alia, to
protect fundamental rights and freedoms, life, health, personal
safety and property, to investigate criminal offences, to identify
culprits and to examine criminal complaints and other applications
for a criminal prosecution to be opened.
Pursuant
to section 9, a police officer on duty – and also, unless there
are special circumstances, off duty – is obliged to intervene
if a criminal offence is being committed and if there is an
imminent danger to life, limb or property.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
As
at the admissibility stage, the Government argued that an action for
protection of personal integrity was a remedy that the applicant
should have used in respect of her complaints under Articles 2 and 8
of the Convention in order to comply with the requirement to exhaust
domestic remedies pursuant to Article 35 § 1 of the Convention.
In support of this argument, the Government relied on the newly
identified judicial decisions (see paragraphs 34 and 35 above) and
maintained that these decisions showed that the action in question
was available to the applicant both in theory and practice. As she
had not made use of this action, the relevant part of the application
was inadmissible.
The
applicant disagreed and argued that, according to both established
judicial practice and legal theory, for an action for protection
of personal integrity to be admissible, it was a prerequisite that
the dignity and social standing of the person concerned had to have
been diminished. This was not so in the present case. Furthermore,
the applicant contended that the recent decisions relied on by the
Government were not final.
The
Court notes that at the admissibility stage in the present case it
examined in extenso the question of the effectiveness, from
the point of view of Article 35 § 1 of the Convention, of an
action for protection of personal integrity. It found that there was
no sufficiently consistent case-law in cases similar to the
applicant's to show that the possibility of obtaining redress in
respect of non-pecuniary damage by making use of the remedy in
question was sufficiently certain in practice and offered reasonable
prospects of success as required by the relevant Convention case-law.
The
Court observed at the admissibility stage that there had been some
development in academic understanding and judicial practice in
respect of the scope of actions for protection of personal integrity.
The
events which gave rise to the present case occurred in 2002. The
decisions on which the Government recently relied date from 2006 (see
paragraphs 34 and 35 above). Any relevance they might possibly have
in respect of the present case is therefore reduced by the fact that
that they were taken after the relevant time (see, for example, V.
v. the United Kingdom [GC], no. 24888/94, § 57,
ECHR 1999 IX).
Furthermore,
it is to be noted that the judicial decisions of 2006 were given by
courts at the lowest level of jurisdiction. There is no indication
that they have been reviewed by higher courts and that they have
already became final.
In
the light of the above, the Court finds no reasons to depart from its
conclusion in the decision of 13 June 2006 in the present case in
respect of the effectiveness of an action for protection of personal
integrity for the purposes of Article 35 § 1 of the Convention.
The
Government's preliminary objection must therefore be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicant complained that the State had failed to protect the life of
her two children and alleged a violation of Article 2 of the
Convention, which in so far as relevant reads as follows:
“1. Everyone's right to life shall be
protected by law...”
With
reference to the conclusions of the criminal courts, the Government
acknowledged that, as regards the domestic authorities' failure to
take appropriate positive action to protect the lives of the
applicant's children, there had been a violation of Article 2 of the
Convention.
Nevertheless,
they emphasised that there had been a vigorous investigation into the
matter by the Inspection Service and that those responsible had been
brought to justice and duly sanctioned.
The
applicant referred to her previous submissions and reiterated her
complaint. She argued, in particular, that the police had been under
a positive obligation to protect the lives of her children and
that they had failed to discharge that obligation. They should have
classified her late husband's mere threats as criminal offences and
should have investigated and prosecuted them of their own motion.
The
Court reiterates that the first sentence of Article 2 § 1
enjoins the State not only to refrain from the intentional and
unlawful taking of life, but also to take appropriate steps to
safeguard the lives of those within its jurisdiction (see L.C.B.
v. the United Kingdom, judgment of 9 June 1998, Reports of
Judgments and Decisions 1998-III, p. 1403, § 36). This
involves a primary duty on the State to secure the right to life by
putting in place effective criminal-law provisions to deter the
commission of offences against the person backed up by
law-enforcement machinery for the prevention, suppression and
punishment of breaches of such provisions. It also extends in
appropriate circumstances to a positive obligation on the authorities
to take preventive operational measures to protect an individual
whose life is at risk from the criminal acts of another individual
(see Osman v. the United Kingdom, judgment of 28 October 1998,
Reports 1998 VIII, p. 3159, § 115).
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 the
positive obligation must be interpreted in a way which does not
impose an impossible or disproportionate burden on the authorities.
Not every claimed risk to life, therefore, 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 to the life of an identified individual from the criminal acts
of a third party and that they failed to take measures within the
scope of their powers which, judged reasonably, might have been
expected to avoid that risk (ibid., pp. 3159-60, § 116).
In
assessing the scope of such positive obligations under Article 2 of
the Convention, the obligation of Contracting States under Article 1
of the Convention to secure the practical and effective protection of
the rights and freedoms laid down therein should be taken into
account (see, mutatis mutandis, McCann and Others v. the
United Kingdom, judgment of 27 September 1995, Series A no.
324, pp. 45-46, §§ 146-147).
Turning
to the facts of the present case, it is to be noted that, pursuant to
section 2 (1) (a) and (b) of the Police Corps Act of 1993, it is one
of the main tasks of the police to serve to protect fundamental
rights and freedoms, life and health. The situation in the
applicant's family was known to the local police department further
to the various communications with her and her relatives in November
and December 2002. Such communications included, inter alia,
the criminal complaint of 2 November 2002 and the emergency phone
calls of the night of 26 to 27 December 2002 which concerned such
serious allegations as long-lasting physical and psychological abuse,
severe beating with an electric cable and threats with a shotgun.
In
response to the applicant's situation, under the applicable
provisions of the CCP and service regulations, the police had an
array of specific obligations. These included, inter alia,
accepting and duly registering the applicant's criminal complaint;
launching a criminal investigation and commencing criminal
proceedings against the applicant's husband immediately; keeping a
proper record of the emergency calls and advising the next shift of
the situation; and taking action in respect of the allegation that
the applicant's husband had a shotgun and had made violent threats
with it.
However,
as established by the domestic courts, the police failed to ensure
that these obligations were complied with. On the contrary, one of
the officers involved assisted the applicant and her husband in
modifying her criminal complaint of 2 November 2002 so that it could
be treated as a minor offence calling for no further action. As found
by the Supreme Court in its judgment of 29 September 2004, the direct
consequence of these failures was the death of the applicant's
children (see paragraphs 18, 21 and 25 above).
In
the light of the above considerations and the admission by the
Government, the Court concludes that there has been a violation of
Article 2 of the Convention in this case.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant also complained that the violation of Article 2 of the
Convention alleged above constituted a violation of her right to
respect for her private and family life under Article 8 of the
Convention, which, in so far as relevant, provides as follows:
“1. Everyone has the right to respect
for his private and family 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.”
The
parties reiterated, mutatis mutandis, their arguments
concerning the complaint under Article 2 of the Convention.
The
Court observes that the complaint under Article 8 of the Convention
has the same factual background as the above complaint under Article
2 of the Convention. It has found a violation of the latter provision
(see paragraph 55 above). In the light of this finding and
notwithstanding the concession made by the Government, the Court
considers that it is not necessary to examine the facts of the case
separately under Article 8 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant further complained that it had been impossible for her to
make a claim in respect of non-pecuniary damage. In substance, she
relied on Article 13 in conjunction with Articles 2 and 8 of the
Convention. Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Effective remedy in respect of the right to life
The
Government argued that the applicant had had at her disposal a remedy
compatible with Article 13 of the Convention. In support of that
contention they relied on the finding of the Constitutional Court to
the effect that it had no jurisdiction to entertain the matter as it
fell within the jurisdiction of the ordinary courts, both criminal as
well as civil. They pointed out that the applicant had failed to make
use of her standing as an aggrieved party in the criminal
proceedings, with all the procedural rights attached to it. They
further argued that the applicant could claim compensation in respect
of any damage of a non-pecuniary nature by way of an action for
protection of personal integrity. To that end they referred to their
arguments in respect of their preliminary objection (see above).
The
applicant disagreed. She emphasised that the purpose of the criminal
proceedings was to determine the criminal liability of the accused
officers and not to examine her human-rights claims. An action for
protection of personal integrity was not an available remedy in her
situation and the applicant considered it to be inappropriate to
require her to develop the existing case-law as to the scope of such
an action beyond its established use by way of an avant-garde
interpretation as suggested by the Government.
The
Court reiterates that Article 13 of the Convention guarantees the
availability at the national level of a remedy to enforce the
substance of the Convention rights and freedoms in whatever form they
might happen to be secured in the domestic legal order. The effect of
Article 13 is thus to require the provision of a domestic remedy
to deal with the substance of an “arguable complaint”
under the Convention and to grant appropriate relief, although
Contracting States are afforded some discretion as to the manner in
which they conform to their Convention obligations under this
provision. The scope of the obligation under Article 13 varies
depending on the nature of the applicant's complaint under the
Convention. Nevertheless, the remedy required by Article 13 must be
“effective” in practice as well as in law. In particular,
its exercise must not be unjustifiably hindered by the acts or
omissions of the authorities of the respondent State (see Aksoy v.
Turkey, judgment of 18 December 1996, Reports 1996-VI, p.
2286, § 95, and Aydın v. Turkey, judgment of 25
September 1997, Reports 1997-VI, pp. 1895-96, §
103).
On
the basis of the evidence adduced in the present case, the Court has
found that the respondent State is responsible under Article 2 of the
Convention for failing to intervene to safeguard the lives of the
applicant's children. The applicant's complaint in this regard is
therefore “arguable” for the purposes of Article 13 in
connection with Article 2 of the Convention (see Boyle and Rice v.
the United Kingdom, judgment of 27 April 1988, Series A no. 131,
p. 23, § 52).
It
is the applicant's contention that she had no possibility of
obtaining compensation for non-pecuniary damage. The question
therefore arises whether Article 13 in this context requires that
such compensation be made available. The Court itself will in
appropriate cases award just satisfaction, recognising pain, stress,
anxiety and frustration as rendering appropriate compensation for
non-pecuniary damage. It has previously found that, in the event of a
breach of Articles 2 and 3 of the Convention, which rank as the most
fundamental provisions of the Convention, compensation for the
non pecuniary damage flowing from the breach should in principle
be available as part of the range of possible remedies (see Keenan
v. the United Kingdom, no. 27229/95, § 130, ECHR
2001 III).
In
this case, the Court concludes that the applicant should have been
able to apply for compensation for the non-pecuniary damage suffered
by herself and her children in connection with their death. From the
above finding as regards the Government's preliminary objection, it
follows that the action for protection of personal integrity provided
her with no such remedy.
Accordingly,
there has been a breach of Article 13 of the Convention, taken
together with Article 2 of the Convention.
B. Effective remedy in respect of the right to respect
for private and family life
The
Court observes that this complaint has the same factual background as
the above complaint of the lack of an effective remedy in respect of
the right to life. It has found a violation of Article 13 taken
together with Article 2 of the Convention (see preceding paragraph).
In the light of that finding the Court considers that it is not
necessary to examine the facts of the case separately under
Article 13 taken together with Article 8 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant lastly complained that, as a result of the decisions of the
Constitutional Court not to entertain her complaints, she had been
denied access to a court to claim compensation for non-pecuniary
damage. She relied on Article 6 § 1 of the Convention, which, in
so far as relevant, provides as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
The
Court observes that this complaint relates to the same facts as, and
has a similar legal background to, the complaint examined above under
Article 13 taken together with Article 2 of the Convention,
concerning the lack of an effective remedy in respect of the right to
life. In the light of its finding of a violation of these provisions,
it holds that it is not necessary to examine the case separately
under Article 6 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 400,000 euros (EUR) by way of compensation for the
non-pecuniary damage resulting from the death of her children and EUR
100,000 by way of compensation for the non-pecuniary damage linked to
the resultant repercussions on her private and family life.
The
Government contested these claims.
The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards her EUR 25,000
under that head.
B. Costs and expenses
The
applicant also claimed EUR 1,300 for the costs and expenses incurred
before the Constitutional Court and EUR 3,000 for those incurred
before the Court.
The
Government contested the amount of the claim and invited the Court to
determine the amount of the award in accordance with its case-law and
the “value of the subject-matter”.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable that the sum claimed should be awarded in full.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Dismisses the Government's preliminary
objection;
Holds that there has been a violation of
Article 2 of the Convention;
Holds that there has been a violation of
Article 13, taken together with Article 2 of the Convention;
Holds that is not necessary to examine
separately the complaints under Article 8, both taken alone and in
conjunction with Article 13 of the Convention, and the complaint
under Article 6 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 25,000
(twenty five thousand euros) in respect of non-pecuniary damage and
EUR 4,300 (four thousand three hundred euros) in respect of costs and
expenses, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
plus any tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 31 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
