AS TO THE ADMISSIBILITY OF
by Rajko DEJDAR
The European Court of Human Rights (First Section), sitting on 5 March 2009 as a Chamber composed of:
Sverre Erik Jebens,
Giorgio Malinverni, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 25 April 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Rajko Dejdar, is a Croatian national who was born in 1949 and lives in Zagreb. He was represented before the Court by Mrs B. Hondl, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. StaZnik.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The medical and other documentation submitted by the applicant shows that, owing to the severe injuries he had sustained in three road accidents, he suffers from chronic back pain and nerve root pain which often renders him incapable of moving. In a decision by the Zagreb Invalidity and Pension Fund of 10 November 1997 the applicant's invalidity was established at a hundred percent.
The applicant lived in a flat in Zagreb owned by an elementary school at which his late father had been employed. In a judgment of the Zagreb Municipal Court (Općinski sud u Zagrebu) of 24 December 2003, which became final on 22 November 2004, the applicant was ordered to vacate the flat within fifteen days. The applicant failed to comply with the judgment and the owner of the flat instituted enforcement proceedings before the same court. An enforcement order was issued on 7 December 2004.
Medical certificates of 16 November and 14 December 2005 and 8 February 2006 show that the applicant suffered from lumboischialgia (degenerative changes in lower spine) characterised by severe back pain and pain in both legs. He was ordered strict rest for ten and five to seven days respectively, painkiller injections and physiotherapy afterwards.
The eviction scheduled for 1 March 2006 was adjourned on the ground of the applicant's poor health. An ambulance was summoned and medical personnel established that the applicant had back pain and pain in his right leg owing to which he was not able to move or walk. The applicant was offered transport to a hospital on a vacuum-filled mattress, in order to undergo a neurological examination, which he refused and asserted that he would see a doctor on his own as soon as relieved of the pain.
A medical certificate of 5 April 2006 shows that the applicant was suffering from severe back pain and pain in his both legs. He was ordered strict rest for seven days, painkiller injections and to undergo physiotherapy afterwards.
On 6 April 2006, on the order of the Municipal Court, all movables were taken out of the flat except the bed where the applicant was lying. The applicant was left in the flat, again on the ground of his bad health. He agreed to vacate the flat by 11 April 2006 stating also that he would not put any new conditions of any kind against the eviction. That was confirmed also by his mother in law present at the scene. However, he failed to do so, claiming that he could not move because of severe back pain. On 11 April 2006 the applicant was taken out of the flat on a camp bed and left lying on the same bed in the rain in the school courtyard. The Government submitted that the applicant immediately stood up and walked away on his own. The applicant disputed this assertion and submitted that he had not been able to walk but did not give any further information about the following events.
The Government claimed that the applicant owned another flat.
B. Relevant domestic law and practice
The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette no. 35/2005) read as follows:
“(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act.
(2) The right to respect for one's personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, the right to respect for one's name and privacy of personal and family life, freedom et alia.
“(1) Where a court finds it justifiable, on account of the seriousness of an infringement of the right to respect for one's personal integrity and the circumstances of a particular case, it shall award non-pecuniary damages, irrespective of compensation for pecuniary damage or where no such damage exists.
Section 13 of the State Administration Act (Zakon o ustrojstvu drZavne uprave, Official Gazette nos. 75/1993, 48/1999, 15/2000 and 59/2001) reads as follows:
“The Republic of Croatia shall compensate damage caused to a citizen, legal entity or other party by unlawful or wrongful conduct of a State administration body, a body of local self-government and administration ...”
As regards civil proceedings for damages, the relevant part of some of the decisions of the Supreme Court expressing its opinion on the responsibility of the State for damage caused by the administrative authorities read as follows:
Decision no. Rev 186/04-2 of 10 January 2006 reads as follows:
“Pursuant to section 13 of the State Administration Act (Official Gazette nos. 75/93, 48/99, 15/00 and 59/01) the Republic of Croatia is obliged to compensate damage resulting from unlawful or wrongful conduct of the State administration bodies, bodies of local self-government and administration ...
Conduct or an omission that is against a law or any other regulation amounts to an unlawful act ... if there exists an intent to cause damage to the rights or interests of third persons or acceptance of that outcome .”
Decision no. Rev 713/1998 of 13 September 2000 reads as follows:
“Conduct or an omission that is against a law or any other regulation amounts to an unlawful act only if there exists an intent to cause damage to the rights and interests of a third person or acceptance of that outcome. The same is true in respect of conduct or a failure to act, contrary to the common or prescribed conduct, amounting to wrongful conduct.”
Decision no. Rev 218/04-2 of 27 October 2004 reads as follows:
“The plaintiffs' claim for damages against the Republic of Croatia is justified only where the statutory conditions have been fulfilled, namely, that the damage is a consequence of unlawful or wrongful conduct of a person or a body performing [civil] service. Unlawful conduct means acting against a law or any other regulation or an omission to apply a regulation with intent to cause harm to a third person or acceptance of that outcome. Wrongful conduct means an act or a failure to act that is contrary to the common or prescribed manner of acting and from which it can be concluded that there has been an intent to cause harm to the rights and interests of a third person or acceptance of that outcome.”
Decision no. Rev 730/04-2 of 16 November 2005 reads as follows:
“... unlawful conduct means acting against the law or omitting to apply statutory provisions with intent to cause damage to a third person or acceptance of that outcome. Wrongful conduct means an act or a failure to act, contrary to the common or prescribed manner of acting ... The burden of proof is on the plaintiff. ... The plaintiff claiming damages is obliged to prove the existence of damage, a harmful act by the defendant (in this case unlawful or wrongful conduct of the State administration bodies within the meaning of section 13 of the State Administration Act) and a causal link between the harmful act and the actual damage.”
Decision no. Rev 257/06-2 of 18 May 2006 reads as follows:
“The purpose of section 13 of the State Administration Act is [to make] the State liable for the damage caused by consciously acting against the law with intent to cause damage to another.”
1. The applicant complained under Article 3 of the Convention of the manner of his eviction.
2. He further complained under Article 6 § 1 and Article 13 of the Convention that the enforcement proceedings had been unfair and that he had no effective remedy in that respect.
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Government argued that the applicant could have brought a civil action for compensation against the State under sections 19 and 1100 of the Civil Obligations Act and under the Convention, which was directly applicable in Croatia.
The Government argued that the manner of the applicant's eviction had been compatible with domestic law, that the applicant's conduct had been aimed solely at attempting to prevent his eviction, that the applicant owned another flat and that the condition of the applicant's health had not prevented him from walking, since he had no need for any prosthetic devices, certainly not a wheelchair.
The applicant argued that, in view of the severe condition of his health and his hundred-percent invalidity, the fact that he had been left for five days in his flat without any of his personal belongings except the bed he was lying on as well as the manner of his eviction when he had been left to lie on a camp bed in the open and in rain had amounted to ill-treatment contrary to Article 3 of the Convention.
The Court does not have to address all issued raised by the parties because the application is in any event inadmissible for the following reasons.
The Court's case-law establishes that Article 3, which prohibits torture and inhuman or degrading treatment or punishment, cannot be relied on where distress and anguish, however deep, flow inevitably, from measures which are otherwise compatible with the Convention, unless there is a special element which causes the suffering to go beyond that inherent in their implementation (see, mutatis mutandis, Tyrer v. the United Kingdom, 25 April 1978, § 30, Series A no. 26; Soering v. the United Kingdom, 7 July 1989, § 100, Series A no. 161; V. v. the United Kingdom [GC], no. 4888/94, § 71, ECHR 1999-IX; and D. and Others v. the United Kingdom (dec.), no. 38000/05, 12 February 2008). The Court further reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Testa v. Croatia, no. 20877/04, § 43, 12 July 2007).
As to the present case, the Court notes at the outset that the applicant's eviction was ordered pursuant to a final judgment adopted in the civil proceedings against the applicant and that the ordering and enforcing of the applicant's eviction as such was compatible with the Convention. However, the Court's review does not end with an assessment of the compatibility of the eviction order. It also has to look at how the measure was implemented in the circumstances of the case.
The Court notes that the eviction order was issued in December 2004 while the first attempt of the applicant's eviction was scheduled for 1 March 2006, thus giving the applicant ample time and opportunity to comply with the final judgment ordering his eviction. The applicant's eviction was twice adjourned on the ground of his bad health. On the first of those occasions, on 1 March 2006 an ambulance was summoned and the applicant was offered to be transferred on a vacuum-filled mattress, which he refused. In the Court's view the national authorities took into due account the applicant's health problems and secured his safe transport on a vacuum-filled mattes and in an ambulance vehicle equipped for the transport of sick persons. When the applicant refused such a transport, although he gave no reason for his refusal, the authorities adjourned his eviction. Furthermore, when the eviction was adjourned for the second time on 6 April 2006, the applicant agreed to vacate the flat until 11 April 2006 which he failed to do. Finally, on 11 April 2006 the relevant authorities evicted the applicant on a camp bed.
As to the applicant's personal circumstances, the Court notes that the documents submitted show that the applicant's invalidity had already been established in 1997 at one hundred percent and that the medical documentation concerning the applicant shows that in the period preceding his final eviction he frequently suffered from severe back pain and pain in his legs which significantly reduced his mobility. However, the medical documents submitted do not indicate that the applicant was unable to move or walk. He was repeatedly ordered complete rest for several days in order to ease the pain and to be able to continue physiotherapy and exercise at home. As to the Government's assertion that the applicant had immediately after his eviction stood up and walked away, the Court notes that the applicant himself gave no account of the events following his eviction on a camp bed.
In view of the above circumstances, the Court finds that the treatment in question did not reach the level of severity so as to fall within the scope of Article 3 of the Convention.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The Court notes that the complaint concerning the alleged unfairness of the enforcement proceedings is entirely unsubstantiated. As regards the complaint under Article 13 of the Convention, the Court notes that, in view of the lack of any substantiation of the complaint about fairness, there is no arguable claim for the purposes of Article 13 of the Convention.
It follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
André Wampach Anatoly
Deputy Registrar President