(Application no. 46598/06)
15 January 2009
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 Branko Tomašic and Others v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
George Nicolaou, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 11 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“1. Defendant M.M. is a person suffering from a profound personality disorder etiologically linked to innate malfunctioning of the brain and the highly unfavourable pedagogical circumstances of his childhood. Dg: mixed personality disorder ...
2. In the context of the said personality disorder the defendant’s reaction to a problematic situation was an inadequate and pathological defence mechanism with inflated ideas and related activities. These inflated ideas do not amount to a mental illness.
3. I have not found elements of either permanent or temporary innate mental illness, diminished intellectual capacity or epilepsy which might be linked to the criminal offences with which the defendant is charged.
4. He is not addicted to alcohol, drugs or other substances ...
5. In view of what has been said under 1, 2 and 3 and in view of all the other information collected so far in connection with the criminal offences, I consider that his ability to wilfully control and understand the meaning and consequences of his act tempore criminis was diminished, but that [he was not] completely unaccountable.
6. There is a strong likelihood that he will repeat the same or similar criminal offences. In order to prevent this, I recommend that the court, apart from the other measures, order compulsory psychiatric treatment with a predominantly psychotherapeutic approach with the aim of developing an ability to resolve difficult situations in life in a more constructive manner.”
“... throughout the whole period in question the defendant had been telling the victim that he would throw a bomb at himself and their child as well as her [the victim] if she happened to be around. These events came to a head on 30 December. The defendant did not refrain from mentioning a bomb either in front of the Welfare Centre’s employees or a policeman. Furthermore, he said in front of the policemen that he would blow himself and the child up with a bomb on the child’s first birthday. Therefore, there is no doubt that both the victim and the witnesses understood these threats as being meant seriously ... Thus, the victim’s fears for her own as well as her child’s safety were justified ...
... all conditions for ordering a security measure [of compulsory psychiatric treatment] have been fulfilled since the defendant committed a crime while his capacity for understanding was diminished and it is likely that he will repeat the same or similar offence. It is necessary to order compulsory psychiatric treatment during his prison term and after his release. The treatment shall take a predominantly psychotherapeutic approach, as recommended by the expert, in order to develop [the defendant’s] ability to address difficult situations in life in a more constructive manner.”
“... there is no doubt that frequent murder threats by ... a bomb should by any objective test have been understood as meant seriously and that [such threats] would cause a real sense of disquiet, fear and anxiety in an average person, in particular in a situation where the victim has known the perpetrator as an aggressive person out of control, as is the case with the victim in the present case.
There is also no doubt that ... the defendant’s threats extended throughout a period of half a year during which the victim feared, owing to continued threats, not only for her own safety but also for the safety and wellbeing of her child which was not even a year old at the time. The victim was thus undoubtedly put in a difficult and unenviable position where she feared daily for her and her daughter’s life, which was confirmed not only in her testimony but also the fact that she sought assistance from the competent authorities [such as] the police, the Social Welfare Centre and the State Attorney.
While examining ... the impugned judgment under Article 379 paragraph 1(2) of the Code of Criminal Procedure this appellate court has established that the first-instance court violated the statutory provisions to the detriment of the defendant when it ordered that a security measure of compulsory psychiatric treatment should continue after the defendant’s release [from prison], which is contrary to Article 75 of the Criminal Code according to which compulsory psychiatric treatment may last as long as the reasons for its application exist but no longer than the prison term.
... this court does not agree with the defendant’s argument that in his case the purpose of punishment would be achieved by a suspended sentence, especially in view of the fact that the defendant ... did not show any self-criticism as regards his acts or any feelings of remorse for what he had said ...”
“M.M. had been kept in detention on remand in VaraZdin Prison from 3 February to 22 May 2006 when he was sent to serve his prison term ... which expired on 3 July 2006.
A psychiatric examination of M.M. carried out during his stay in detention showed that he suffered from a mixed personality disorder which derived from innate malfunctioning of the brain and the unfavourable pedagogical circumstances of his childhood. In the same opinion the expert psychiatrist recommended that compulsory psychiatric treatment be ordered with a predominantly psychotherapeutic approach with the aim [that M.M.] develop an ability to resolve difficult situations in life in a more constructive manner.
While M.M. served his prison term, intensive treatment consisting in frequent individual conversational sessions was envisaged, in accordance with the individual programme of serving a prison term. He rarely came for the sessions of his own accord and was therefore, in [order to satisfy] the need for treatment, requested to do so by the staff. ...
While in prison M.M. saw the prison doctor on five occasions, sometimes of his own accord, sometimes at the doctor’s call. He did not insist on his psychiatric therapy and therefore his treatment was based, as recommended by the expert, on intensive psychotherapeutic treatment by the staff, the prison governor and the others who talked to him. He was a highly introverted person, so his true personality could not be detected in detention or prison conditions.”
“The above-mentioned is the governor of VaraZdin Prison and he states that the late M.M. served his prison term in VaraZdin Prison from 3 February to 3 July 2006 ...
While in prison M.M. underwent psychiatric treatment pursuant to the expert opinion and recommendation. The treatment was based on intensive psychotherapeutic treatment of M.M. consisting of conversational sessions between M.M. and the prison staff, himself [meaning the governor] and the prison doctor. During the treatment M.M. neither received nor asked for any pharmacotherapy. It was also established that M.M. was a very introverted person who did not wish to cooperate in the treatment.
During his stay in the prison M.M. saw the prison doctor on five occasions in connection with some other problems, that is to say, illnesses.
He further maintains that there are no internal regulations on the implementation of security measures and that all treatment is carried out in accordance with the Enforcement of Prison Sentences Act.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
“Every human being has the right to life.
“Everyone has the right to request the institution of proceedings to review the constitutionality of statutes ...”
“(1) The Constitutional Court shall quash a statute or its provisions if it finds that they are incompatible with the Constitution ...”
“The security measure of compulsory psychiatric treatment may be imposed only as regards a perpetrator who, at the time of committing a criminal offence, suffered from significantly diminished responsibility [and] where there is a risk that the factors giving rise to the state [of diminished responsibility] might incite the future commission of a further criminal offence.
The security measure of compulsory psychiatric treatment may be imposed, under the conditions set out in paragraph 1 of this Article, during the execution of a prison sentence, in lieu of a prison sentence or together with a suspended sentence.
Compulsory psychiatric treatment shall be imposed for as long as the grounds for its application exist, but [it shall not] in any case exceed the prison term ... Compulsory psychiatric treatment shall not under any circumstances exceed three years.
“In order to ... decide whether to request an investigation ... the State Attorney shall order the police to collect the necessary information and take other measures concerning the crime [at issue] with a view to identifying the perpetrator ...”
“Where there is a suspicion that a criminal offence liable to public prosecution has been committed, the police shall take the necessary measures with a view to indentifying the perpetrator ... and collect all information of possible relevance for the conduct of the criminal proceedings...”
“(1) An investigation shall be opened against a particular individual where there is a suspicion that he or she has committed a criminal offence.
(2) During the investigation evidence and information necessary for deciding whether an indictment is to be brought or the proceedings are to be discontinued shall be collected ...”
“(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.
“(1) In the case of death or particularly serious invalidity of a person the right to non-pecuniary damages shall vest in his or her close family members (spouse, children and parents).
(2) Such damages may be awarded to the siblings, grandparents, grandchildren and a common-law spouse where these persons and the deceased permanently shared the same household.
“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 ...”
“A person intending to bring a civil suit against the Republic of Croatia shall beforehand submit a request for a settlement with the competent State Attorney’s office.
Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court.
PURPOSE OF A PRISON TERM
“The main purpose of a prison term, apart from humane treatment and respect for personal integrity of a person serving a prison term, ... is development of his or her capacity for life after release in accordance with the laws and general customs of society.”
PREPARATION FOR RELEASE AND ASSISTANCE AFTER THE RELEASE
“During the enforcement of a prison sentence a penitentiary or prison shall, together with the institutions and other legal entities in charge of assistance after release, ensure preparation of a prisoner for his or her release [from prison].”
INDIVIDUAL PRGRAMME FOR THE ENFORCEMENT OF A PRISON TERM
(1) The individual programme for the enforcement of a prison term (hereinafter “the enforcement programme”) consists of a combination of pedagogical, working, leisure, health, psychological and safety acts and measures aimed at organising the time spent during the prison term according to the character traits and needs of a prisoner and the type and possibilities of a particular penitentiary or prison. The enforcement programme shall be designed with a view to fulfilling the purposes of a prison term under section 7 of this Act.
(2) The enforcement programme shall be designed by a prison governor on the proposal of a penitentiary or a prison’s expert team ...
(3) The enforcement programme shall contain information on ... special procedures (... psychological and psychiatric assistance ... special security measures ...)
“(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health...”
“(1) The State Attorney’s Office is entitled to compensation for the costs of representation before the courts and other competent bodies according to the regulations on lawyers’ fees.
(2) Funds obtained as the costs of representation are paid into the State’s budget.”
The relevant parts of decision no. Rev 2203/1991-2 of 30 December 1991 read as follows:
“The employees of Open Penitentiary V.-P. and of L. State Prison caused the damage in question by their unlawful and wrongful conduct in allowing D.P. to escape from the penitentiary instead of preventing his escape by the use of force if necessary (sections 175 and 176, paragraph 140, of the Enforcement of Penal and Misdemeanours Sanctions Act, Official Gazette nos. 21/74 and 39/74).
Enforcement of a sentence, and in particular the enforcement of a prison term, fulfils the purpose of punishment defined by law which includes, inter alia, preventing a perpetrator from committing [a further] criminal offence by restricting his freedom of movement. In the circumstances of the present case the employees of the above-mentioned penitentiaries, for whose conduct the defendant [the State] is liable, failed to [prevent the escape] of a convict who repeated the same act of violence (in even more serious circumstances) as the criminal offence for which he had been convicted and placed in prison ... The fact that he committed a criminal offence of robbery and caused damage to the plaintiff and numerous other persons by acts of violence during his escape shows that he is a danger to society who should have been prevented from committing criminal offences by being kept in prison. The same transpires from his previous criminal record ...
Therefore, in the case at issue there is a legally relevant causal link between the unlawful and wrongful conduct of the defendant’s employees, the escape and the harmful act ... which all lead to the defendant’s liability.”
The relevant part of 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 .”
The relevant part of 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 manner of acting, amounting to wrongful conduct.”
The relevant part of 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.”
The relevant part of 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.”
The relevant part of 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.”
Article 2 of the Convention reads as follows:
“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.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
The parties’ submissions
The Court’s assessment
The parties’ arguments
The Court’s assessment
a. Substantive aspect of Article 2 of the Convention
Application of these principles to the present case
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“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.”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
4 Holds that there is no need to examine the complaint under Article 13 of the Convention;
(a) that the respondent State is to pay the applicants jointly, within three months from 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 national currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 40,000 (forty thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicants;
(ii) EUR 1,300 (one thousand three hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicants;
(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;
Done in English, and notified in writing on 15 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Nicolaou is annexed to this judgment.
Concurring opinion of judge Nicolaou
It seems to me that what was primarily and urgently required in the present case was effective police protection of the victims, mother and child. That is not to say that psychiatric help, together with social support measures, directed towards the perpetrator of the crimes, should not also have been tried in the search for a better solution to what was, obviously, a very difficult situation.
There is, of course, no way of knowing whether compulsory psychiatric treatment of “ a predominantly psychotherapeutic approach”, as prescribed by expert appointed, would have been effective at least in preventing the loss of life. What, however, is important here is that the courts, both at first instance and on appeal, considered that it was necessary to make such order, described in the relevant law as a “security measure”. It must be assumed that the courts were aware of the regulatory framework in which the order would take effect, including possible difficulties in its enforcement due to the lack of detailed rules. They must, nonetheless, have expected compliance in the absence of which the order would have been devoid of meaning and purpose. There was, unfortunately, no real compliance. As is pointed out in paragraph 56 of the judgment, it has not been shown “that the compulsory psychiatric treatment ordered was actually and properly administered”.
It would, undoubtedly, have been helpful to have had specific rules spelling out the practical steps for the enforcement of psychiatric treatment orders. But I find it difficult to accept that without such rules the order in question was, from its inception, ineffectual. The authorities have not explained convincingly that they did all that was possible to provide an environment in which the order would stand a chance of success. There is in fact no indication that specialist psychiatric help was made available to M.M. and neither is there any indication that efforts were made to enforce the order. It has been said that M.M. was himself reluctant to cooperate; but it should not be assumed that this would have persisted or that it would have prevailed if appropriate expert help, in the right context, had been forthcoming. Therefore, I am unable to subscribe to the view, expressed in paragraph 42 of the judgment, that “in any event the issue here is not a question of whether the authorities acted unlawfully or whether there was any individual responsibility of a State official on whatever grounds”.
In Croatia, under a rule established by domestic case-law, the fact that a person in authority is at fault, whether by act or omission, will not render the State vicariously liable for compensation unless it is shown “that there was an intent on the part of the authorities to cause damage to a third person
or acceptance of that outcome”. That restriction seems to me to be inconsistent with full State responsibility which must be regarded as an indispensable component in the protection of life under Article 2.
Having regard to the circumstances of the present case, the prospect of civil liability should not be associated with suppositions concerning what should have been the duration of sufficient treatment that would signal either success or failure. In the absence of actual experience, that could have been gained from properly administered treatment, no valid assessment was possible. Therefore, domestic provisions relating to length of treatment cannot here be directly relevant; a problem regarding duration would arise only where it was positively shown that a longer period of treatment was called for.
Finally and perhaps most importantly, it should have been apparent, if those responsible had carefully reflected on the situation, that the murder victims were, after M.M.’s release from prison, imperatively in need of police protection without which their lives remained in mortal danger. Sadly, nothing at all was done in that direction and, as it seems, no one has been held accountable in any way. In such circumstances individual fault should not be completely discounted by reason of imperfections in regulatory provisions concerning the enforcement of psychiatric treatment orders.