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HAJDUOVA v. SLOVAKIA - 2660/03 [2010] ECHR 1908 (30 November 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1908.html
Cite as:
[2010] ECHR 1908
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FOURTH
SECTION
CASE OF
HAJDUOVÁ v. SLOVAKIA
(Application
no. 2660/03)
JUDGMENT
STRASBOURG
30
November 2010
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 Hajduová v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 9 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 2660/03) 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 Slovak national, Ms Marta Hajduová
(“the applicant”), on 10 January 2003.
The
applicant was represented by Mrs I. Rajtáková, a lawyer
practising in Košice. The Government of the Slovak Republic
(“the Government”) were represented by Ms A. Poláčková
and Ms M. Pirošiková, their successive Agents.
The
applicant alleged that the domestic authorities had violated her
rights under Articles 5 and 8 of the Convention by failing to comply
with their statutory obligation to order that her former husband be
detained in an institution for psychiatric treatment, following
his criminal conviction for having abused and threatened her.
On
26 March 2006 the President of the Fourth Section of the Court to
which the case had been allocated decided to give notice of the
application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1960 and lives in Košice.
A. Abuse suffered by the applicant
On
21 August 2001 the applicant's (now former) husband, A., attacked her
both verbally and physically while they were in a public place. The
applicant suffered a minor injury and feared for her life and safety.
This led her and her children to move out of the family home and into
the premises of a non-governmental organisation in Košice.
On
27 and 28 August 2001 A. repeatedly threatened the applicant, inter
alia, to kill her and several other persons. Criminal proceedings
were brought against him and he was remanded in custody.
B. Indictment and conviction of A.
On
29 November 2001 a public prosecutor indicted A. before the Košice
I District Court (“the District Court”). The indictment
stated that the accused had been convicted four times in the past.
Two of the offences had been committed in the last ten years and
involved breaches of court or administrative orders.
In
the course of the criminal proceedings, experts established that the
accused suffered from a serious personality disorder. His treatment
as an in patient in a psychiatric hospital was recommended.
On
7 January 2002 the District Court convicted A. The court decided not
to impose a prison sentence on him and held that he should undergo
psychiatric treatment. At the same time, the court released him from
detention on remand. A. was then transported to a hospital in Košice.
That hospital did not carry out the treatment which A. required, nor
did the District Court order it to carry out such treatment. A. was
released from the hospital on 14 January 2002.
C. Renewed threats against the applicant
After
his release from hospital on 14 January 2002, A. verbally threatened
the applicant and her lawyer. On 14 and 16 January 2002,
respectively, the applicant's lawyer and the applicant herself filed
criminal complaints against him. They also informed the District
Court (which had convicted him on 7 January 2002) about his behaviour
and of the new criminal complaints they had filed.
On
21 January 2002 A. visited the applicant's lawyer again and
threatened both her and her employee. On the same day he was arrested
by the police and accused of a criminal offence.
D. Arrangements for psychiatric treatment of A.
On
22 February 2002 the District Court arranged for psychiatric
treatment of A. in accordance with its decision of 7 January
2002 (see paragraph 10 above). He was consequently transported to a
hospital in Plešivec.
E. The applicant's domestic complaints
On
7 March 2002 the applicant filed a complaint with the Constitutional
Court. She alleged a violation of Articles 5 and 6 of the Convention
and of Articles 16 (§ 1) and 19 (§
2) of the Slovak Constitution, in that the District Court had failed
to ensure that her husband be placed in a hospital for the
purpose of psychiatric treatment immediately after his conviction on
7 January 2002.
The
Constitutional Court rejected the applicant's complaint on 2 October
2002. In its decision it found that there had been no interference
with the applicant's rights under Article 5 § 1 of the
Convention, as interpreted by the Convention organs. As to the
alleged violation of the applicant's rights under Articles 16 (§
1) and 19 (§ 2) of the Constitution, the applicant should have
pursued an action for the protection of her personal integrity before
the ordinary courts. Reference was made to the Constitutional Court's
decisions on cases nos. I. ÚS 2/00 and II. ÚS 23/00.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitutional provisions and practice
Article
16 § 1 of the Slovak Constitution guarantees to everyone the
inviolability of his or her home and privacy.
Article
19 § 2 guarantees to everyone the right to protection from
unjustified interference with his or her private and family life.
In
a decision of 5 January 2000 in case no. I. ÚS 2/00 the
Constitutional Court declared inadmissible a petition in which the
plaintiff alleged a violation of Article 19 of the Constitution in
that the public authorities had systematically requested that he
should submit his higher education diploma to them. The decision
stated that the plaintiff should have sought the protection of his
rights under Article 19 of the Constitution by means of an action
for protection of his personal integrity pursuant to Articles 11 et
seq. of the Civil Code.
In
a decision of 23 March 2000 in case no. II. ÚS 23/00 the
Constitutional Court rejected, for lack of jurisdiction, a petition
in which the plaintiff had complained about a violation of his rights
under Article 19 of the Constitution on the ground that the Minister
of Justice had asked him to submit, as president of a District Court,
information about his financial situation. The Constitutional Court
held that the issue fell within the jurisdiction of the ordinary
courts which had power to deal with it under Articles 11 et seq.
of the Civil Code.
B. Code of Criminal Procedure and relevant practice
Under
Article 351 § 1 of the Code of Criminal Procedure (Law
no. 141/1961 Coll., as applicable at the relevant time) the
president of the relevant chamber shall order the medical institution
concerned to carry out the treatment of a person in accordance with
the court's decision. Where the person concerned represents a danger
to his or her environment, the president of the chamber shall arrange
for his or her immediate transfer to the medical institution
(paragraph 2 of Article 351).
In
accordance with the practice of the Supreme Court (R 46/1977) the
medical treatment of a person ordered by a court should, in
principle, be arranged for immediately after the relevant
decision has become executable.
C. Civil Code (Law of February 1964, published in the
Collection of Laws under no. 40/1964, as amended)
The
Civil Code reads as follows:
Article 11
“Every natural person shall have the right to
protection of his or her personal integrity, in particular his or her
life and health, civil and human dignity, privacy, reputation and
expressions of a personal nature.”
Article 13
“1. Every natural person shall have the
right in particular to request an order restraining any
unjustified interference with his or her personal integrity, an order
cancelling out the effects of such interference and an award of
appropriate compensation.
2. If the satisfaction afforded under
paragraph 1 of this Article is insufficient, in particular
because the injured party's dignity or social standing has been
considerably diminished, the injured party shall also be entitled to
financial compensation for non pecuniary damage.
3. When determining the amount of
compensation payable under paragraph 2 of this Article,
the court shall take into account the seriousness of the harm
suffered by the injured party and the circumstances in which the
violation of his or her rights occurred.”
D. Act No. 514/2003
Act
no. 514/2003 on Liability for Damage Caused in the Context of
Exercise of Public Authority (Zákon o zodpovednosti za
škodu spôsobenú pri výkone verejnej moci
a zmene niektorých zákonov) was adopted on
28 October 2003. It became operative on 1 July 2004 and
replaced, as from that date, the State Liability Act of 1969.
The
explanatory report to Act No. 514/2003 provides that the purpose of
the Act is to render the mechanism of compensation for damage caused
by public authorities more effective and thus to reduce the number of
cases in which persons are obliged to seek redress before the
European Court of Human Rights.
Section
17 of the Act provides for compensation for pecuniary damage
including lost profit and, where appropriate, also for compensation
for damage of a non-pecuniary nature.
For
a more detailed analysis of the relevant domestic law, see also the
Court's admissibility decision in the case of Kontrová v.
Slovakia (dec.), no. 7510/04, 13 June 2006.
III. RELEVANT INTERNATIONAL MATERIAL
For
a summary of relevant international material see the Court's judgment
in Opuz v. Turkey, no. 33401/02, §§
72-86 , ECHR 2009 ..., in particular the Committee of Ministers
of the Council of Europe's Recommendation Rec(2002)5 of 30 April 2002
on the protection of women against violence.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that the State had failed to fulfil its positive
obligation to protect her from A., in violation of Article 8, which
reads, as relevant:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.”
A. Admissibility
1. The parties' submissions
(a) The Government
The
Government argued that the application was inadmissible under Article
35 § 1 of the Convention as the applicant had failed to exhaust
all available domestic remedies. Notably, she had failed to pursue an
action for the protection of her personal integrity under Articles 11
et seq. of the Civil Code. They further emphasised that
Slovakian law required the courts of general jurisdiction to
interpret the rights guaranteed under Article 11 of the Civil Code in
accordance with the Convention.
They
distinguished the Court's admissibility decision in the case of
Kontrová (cited above) from the present case. In
Kontrová, in the context of complaints under Articles 2
and 8 of the Convention resulting from domestic violence, the Court
considered that the Government had not shown that an action for the
protection of personal integrity under Articles 11 et seq. of
the Civil Code was sufficiently certain in practice or that it
offered at least some prospects of success. In so finding, the Court
laid emphasis on the Constitutional Court's ambiguous conclusion as
to whether an action for protection of personal integrity had been
available to the applicant in the circumstances. It stressed, in
particular, the dissenting opinion of the presiding judge to the
effect that the applicant did not have any effective remedy through
which she could have claimed non pecuniary damages either in
civil or criminal proceedings.
The
Government relied on the Court's decision in the case of Babjak
and others v. Slovakia (dec.), no.73693/01, 30 March 2004. There,
in the context of a complaint under Article 6 § 2 of the
Convention, the Court considered that in the circumstances of the
case a civil action under Articles 11 et seq. of the
Civil Code was in principle capable of remedying the first
applicant's situation. This complaint was therefore dismissed under
Article 35 §§ 1 and 4 of the Convention for
non exhaustion of domestic remedies. The Government further
relied on the Constitutional Court's consideration of the present
applicant's case (see paragraph 15 above) as support for their
argument that the applicant should have sought an action in the
courts of general jurisdiction for the protection of her personal
integrity under Article 11 of the Civil Code.
The
Government contested the Court's conclusion in its decision in
Kontrová (cited above) that actions for the protection
of personal integrity had primarily been pursued in defamation
proceedings. They maintained that the respondent State could not be
held responsible for the relatively rare use of this remedy, despite
the Constitutional Court having made clear its availability.
Furthermore, they contended that the Court's practice in not
dismissing such applications as inadmissible for non exhaustion
of domestic remedies had dissuaded potential applicants from using
the domestic remedy in question. They finally asserted that the
applicant could still pursue an action under the Civil Code, as
personal integrity rights were not subject to limitation under
Slovakian law.
Lastly,
the Government conceded that the pertinent and existing practice of
the Slovak Constitutional Court was not “absolutely
unambiguous.” Notwithstanding, they asserted that in some
instances that they had cited (see relevant domestic law and practice
above) the Constitutional Court had directed complainants to pursue
an action for protection of their personal integrity in the ordinary
courts.
(b) The applicant
The
applicant replied that the Government had failed to cite any previous
decision in which the remedy they asserted (namely an action for
the protection of personal integrity under Articles 11 et seq.
of the Civil Code) had been used in a case similar to hers. She
contended that Article 13 § 1 of the Civil Code had
not been interpreted in legal practice as allowing the authorities to
be sued for compensation for non-pecuniary damage in the event that
they failed to adequately protect an individual from any unjustified
interference with his or her personal integrity.
The
applicant further maintained that the subsequent coming into force of
Act no. 514/2003 Coll. (see paragraph 23 above) which, inter alia,
provided for non-pecuniary compensation for damage caused by public
bodies was evidence of a prior gap in the law. This remedy, however,
had not been available to her at the time of the domestic
authorities' consideration of her case.
2. The Court's assessment
The
Court points out that the purpose of Article 35 of the Convention is
to afford the Contracting States the opportunity of preventing or
putting right the violations alleged against them before those
allegations are submitted to the Convention institutions.
Consequently, States are dispensed from answering for their acts
before an international body before they have had an opportunity to
put matters right through their own legal system. The rule of
exhaustion of domestic remedies referred to in Article 35 of the
Convention requires that normal recourse should be had by an
applicant only to remedies that relate to the breaches alleged and at
the same time are available and sufficient. The existence of such
remedies must be sufficiently certain not only in theory but also in
practice, failing which they will lack the requisite accessibility
and effectiveness; it falls to the respondent State to establish that
these various conditions are satisfied (see Selmouni v. France
[GC], no. 25803/94, §§ 74 and 75, ECHR 1999-V
and Branko Tomašić and Others v. Croatia, no.
46598/06, §§ 35-37, ECHR 2009 ...
(extracts)).
Article
35 provides for a distribution of the burden of proof. It is
incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and in
practice at the relevant time, that is to say, that it was
accessible, was one which was capable of providing redress in respect
of the complaints invoked and offered reasonable prospects of success
(see Akdivar and Others v. Turkey, 16 September 1996, § 68,
Reports of Judgments and Decisions 1996-IV).
The
Court would emphasise that the application of this rule must make due
allowance for the context. Accordingly, it has recognised that
Article 35 must be applied with some degree of flexibility and
without excessive formalism (see Cardot v. France, 19 March
1991, § 34, Series A no. 200). It has further
recognised that the rule of exhaustion of domestic remedies is
neither absolute nor capable of being applied automatically; in
reviewing whether the rule has been observed, it is essential to have
regard to the particular circumstances of the individual case (see
Van Oosterwijck v. Belgium, 6 November 1980, § 35,
Series A no. 40). This means, amongst other things, that
the Court must take realistic account not only of the existence of
formal remedies in the legal system of the Contracting Party
concerned but also of the general legal and political context in
which they operate as well as the personal circumstances of the
applicants (see Akdivar and Others, cited above, § 69).
The
Court notes at the outset the Government's challenge to its
observation in its decision in Kontrová (cited above)
that actions for the protection of personal rights had primarily been
pursued in defamation proceedings (see paragraph 32 above). It
further observes that its inadmissibility decision in the case of
Babjak (cited above) on which the Government seek to rely (at
paragraph 31 above) similarly concerned circumstances in which a
clear affront to the applicant's dignity or social standing could be
identified, as the complaint in issue centred on Article 6 § 2
of the Convention and the applicant's right to be presumed innocent
until proved guilty. This of course would have a clear impact on the
public's perception of the applicant and would therefore come within
the limited scope of the provision of non-pecuniary damage contained
in Article 13 (2) of the Civil Code (see paragraph 22 above).
The
Court also takes notice of the special provisions in respect of
non-pecuniary damage caused by public authorities introduced by Act
No. 514/2003 Coll. which came into force on 1 July 2004 (see
paragraph 23 above). Notwithstanding, it observes as it did in
its decision in the case of Kontrová, that this piece
of new legislation only applies to events that took place after its
entry into force and has no retrospective application to the facts
giving rise to the present application.
Turning
to the present case, the Court considers that the Government have
failed to show, with reference to demonstrably established consistent
case-law in cases similar to the applicant's, that their
interpretation of the scope of the action for protection of personal
integrity was, at the material time, sufficiently certain not only in
theory but also in practice and offered at least some prospects of
success. In making this conclusion, the Court has also taken into
consideration the applicant's personal circumstances, the particular
vulnerability of victims of domestic violence and the need for active
State involvement in their protection (see Bevacqua and S.
v. Bulgaria, no. 71127/01, § 65, 12 June 2008 and Opuz
v. Turkey, no. 33401/02, §
132, ECHR 2009 ...) and that the Convention is intended to
guarantee rights that are not theoretical or illusory, but rights
that are practical and effective (see, for example, Matthews v.
the United Kingdom [GC], no. 24833/94, § 34, ECHR 1999-I and
the Court's decision in the case of Kontrová (cited
above)).
The
Government's objection as to the exhaustion of domestic remedies with
respect to the complaint of failure to protect the applicant, her
children and lawyer from further threats from A. therefore cannot
be sustained. The Court notes that this complaint is not
manifestly ill founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties' arguments
The
applicant emphasised that the District Court was clearly aware that
A. was a danger to society, following the submission of an expert
opinion which had concluded that he was suffering from a form of
bipolar disorder which was curable if he underwent adequate
treatment. Notwithstanding, the District Court failed to discharge
its statutory obligation to order a medical institution to detain A.
for psychiatric treatment. The District Court only ordered the
necessary treatment after a further criminal charge had been
brought against A. by the applicant's lawyer and after A. had been
detained by the Košice II District Office of Judicial and
Criminal Police. The domestic court's omission had allowed A. to
resume his threats against her, which obliged the applicant and her
children to leave the family home.
The
Government accepted that A. had not been detained for psychiatric
treatment after his conviction on 7 January 2002. They further
recognised that despite the District Court having been notified by a
letter dated 15 January 2002 that A. had been released from hospital
on 14 January 2002 the District Court had only ordered his
detention for treatment on 22 January 2002, following the applicant's
filing of a new criminal complaint. This, by the Government's own
admission, rendered the applicant's complaint under Article 8 of the
Convention “not manifestly ill-founded”.
2. The Court's assessment
The
Court recalls that while the essential object of Article 8 of the
Convention is to protect the individual against arbitrary action by
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.
Children and other vulnerable individuals, in particular, are
entitled to effective protection (see X and Y v. the Netherlands,
26 March 1985, §§ 23-24 and 27, Series A no. 91, and
August v. the United Kingdom (dec.), no. 36505/02, 21 January
2003).
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 the 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 and M.C. v.
Bulgaria, no. 39272/98, §§ 150 and 152, ECHR
2003 XII, and most recently the Court's judgment in the case of
A v. Croatia, no. 55164/08, §
60, 14 October 2010 (not yet final)). The Court notes in this
respect that the particular vulnerability of the victims of domestic
violence and the need for active State involvement in their
protection has been emphasised in a number of international
instruments (see the reference to the Court's judgment in the case of
Opuz at paragraph 27 above and the Court's judgments in
Bevacqua, cited above, §§ 64-65, and Sandra
Janković v. Croatia, no. 38478/05,
§44-45, ECHR 2009 ... (extracts)).
The
Court reiterates that its task is not to substitute itself for the
competent domestic authorities in determining the most appropriate
methods for protecting individuals from 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 Slovakia, in
handling the applicant's case, has been in breach of its positive
obligation under Article 8 of the Convention (see Sandra
Janković, cited above, § 46).
As
to the present case, the Court notes that A. was convicted by the
District Court on 7 January 2002 as a result of his violent
behaviour towards the applicant. It further observes that the reason
why A. was not sentenced to imprisonment was the domestic court's
reliance on expert opinions which concluded that he was suffering
from a serious personality disorder and recommended that he be
treated as an in-patient in a psychiatric hospital. Moreover, the
Court lays emphasis on the fact that the District Court held, when
convicting A. on 7 January 2002, that he should be sent to a
hospital in order to undergo psychiatric treatment. As the applicant
stresses, A. was shortly released from that hospital due to the
District Court's failure to discharge its statutory obligation (under
Article 351 (1) of the Code of Criminal Procedure set out at
paragraph 20 above) to order the hospital to detain him and provide
him with the treatment in question. As a result of the District
Court's omission, the applicant and her lawyer were subjected to
renewed threats from A., which led to the filing of fresh criminal
complaints against him.
The
Court observes that the instant application is distinguishable from
the cases to which it has referred concerning domestic violence
resulting in death (see, in particular, the Court's judgments in the
cases of Kontrová v. Slovakia, no. 7510/04, ECHR
2007 VI (extracts) and Opuz cited above, in which it
found violations of Articles 2 and 13 and Articles 2, 3 and
14 of the Convention respectively). It is clear that A.'s repeated
threats following his release from hospital, which constitute the
basis of the applicant's complaint under Article 8 of the Convention,
did not actually materialise into concrete acts of physical violence
(compare and contrast the case of Bevacqua, cited
above, in which the Court found that the State had breached its
positive obligations under Article 8). Notwithstanding, the Court
considers that given A.'s history of physical abuse and menacing
behaviour towards the applicant, any threats made by him would arouse
in the applicant a well-founded fear that they might be carried out.
This, in the Court's estimation, would be enough to affect her
psychological integrity and well-being so as to give rise to an
assessment as to compliance by the State with its positive
obligations under Article 8 of the Convention.
The
Court appreciates that the police did intervene on 21 January 2002
when A. was arrested and accused of a criminal offence. However, it
cannot overlook the fact that it was the domestic authorities'
inactivity and failure to ensure that A. was duly detained for
psychiatric treatment which enabled him to continue to threaten the
applicant and her lawyer. Moreover, it was only after the applicant
and her lawyer had filed fresh criminal complaints against A. that
the police had taken it upon themselves to intervene. In this
connection, it recalls that the domestic authorities were under a
duty to take reasonable preventive measures where they “knew or
ought to have known at the time of the existence of a real and
immediate risk” (see, mutatis mutandis, the Court's
judgment in the case of Osman v. the United Kingdom, 28
October 1998, § 116, Reports 1998 VIII). The Court
finds that A.'s conviction for violence against the applicant on
7 January 2002, A.'s criminal antecedents, and the District
Court's own assessment that A. was in need of psychiatric treatment
were sufficient, in the circumstances of the case, to render the
domestic authorities aware of the danger of future violence and
threats against the applicant. Furthermore, owing to the particular
vulnerability of victims of domestic violence which the Court has
highlighted on a number of occasions (see the Court's judgment in
Opuz, cited above, § 132, among other
authorities), the domestic authorities should have exercised an even
greater degree of vigilance in the present case.
The
Court notes the Government's admission that the applicant's complaint
under Article 8 of the Convention is not manifestly ill-founded.
Rather, the Government have sought to argue that the application is
inadmissible for want of exhaustion of domestic remedies, an
objection which has been rejected by the Court. The Government have
recognised in their observations that A. was not detained for
psychiatric treatment after his conviction on 7 January 2002. They
have further acknowledged that despite the District Court having been
notified by a letter dated 15 January 2002 that A. had been released
from hospital on 14 January the District Court only ordered his
detention for treatment on 22 January 2002, following the
applicant's filing of a new criminal complaint.
In
light of the foregoing, the Court finds that the lack of sufficient
measures taken by the authorities in reaction to A.'s behaviour,
notably the District Court's failure to comply with its statutory
obligation to order his detention for psychiatric treatment following
his conviction on 7 January 2002, amounted to a breach of
the State's positive obligations under Article 8 of the Convention to
secure respect for the applicant's private life.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicant further complained that the District Court's failure
to comply with its statutory obligation to order that A. be
detained for psychiatric treatment violated her rights under Article
5 of the Convention.
The Court recalls that Article 5 contemplates
individual liberty “in its classic sense, that is to say the
physical liberty of the person” (see Engel and Others v. the
Netherlands, 8 June 1976, § 58, Series A no. 22, among other
authorities). The phrase “security of the person” must
also be understood in the context of physical liberty rather than
physical safety (see East African Asians
v. the United Kingdom, no. 4626/70 et al., Commission's report
of 14 December 1973, Decisions and Reports 78, p. 67,
§ 220 and Zilli and Bonardo v. Italy (dec.), no.
40143/98, 18 April 2002). The inclusion of the word “security”
simply serves to emphasise the requirement that detention may not be
arbitrary (Bozano v. France, 18 December 1986, §§
54 and 60, Series A no. 111).
The
Court observes that in the instant case, the applicant's complaint
essentially concerns the authorities' failure to protect her
“security of person” by ordering the detention of A. The
Court refers to its pertinent jurisprudence cited above in finding
that no such right exists under Article 5 of the Convention and that
the concept of security must be understood in the context of physical
liberty rather than physical safety.
It follows that the applicant's complaint under
Article 5 is incompatible ratione materiae
with the provisions of the Convention, within the meaning of
Article 35 § 3, and must be rejected in accordance with Article
35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 5,000 EUR in respect of non-pecuniary damage. She
highlighted the fear and stress that the domestic court's omission
had caused her, in allowing A. to continue to threaten her.
The
Government contested the applicant's claim for non-pecuniary damage
and maintained that it was exaggerated. They submitted that in the
event of the Court finding a breach of the applicant's rights under
Article 8 of the Convention, the finding of the violation would
constitute sufficient just satisfaction.
The
Court considers that the applicant has undoubtedly suffered anguish
and distress on account of the authorities' failure to undertake
sufficient measures to secure respect for her private life.
Having regard to the relevant facts of the case and deciding on an
equitable basis, the Court awards EUR 4,000 to the applicant (see
Bevacqua, cited above, § 97).
B. Costs and expenses
The
applicant also claimed SK 50,575 (approximately EUR 1,679) for the
costs and expenses incurred before the domestic courts as well as
before this Court. This included 5 hours of legal fees for her case
before the Constitutional Court and 12 hours of legal fees in the
preparation of her application to this Court.
The
Government found the applicant's claim for costs and expenses to be
overstated. They requested the Court to grant the applicant
compensation only as regards reasonably incurred costs and expenses,
citing the Court's finding in cases such as Young,
James and Webster v. the United Kingdom (Article 50), 18 October
1982, § 15, Series A no. 55 that “...high costs of
litigation may themselves constitute a serious impediment to the
effective protection of human rights. It would be wrong for the Court
to give encouragement to such a situation in its decisions awarding
costs...It is important that applicants should not encounter undue
financial difficulties in bringing complaints under the Convention
and the Court considers that it may expect that lawyers in
Contracting States will co-operate to this end in the fixing of their
fees.”
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 are reasonable as to
quantum. In the circumstances of the present case, regard being had
to the information in its possession and the above criteria, and also
taking into consideration the fact that part of the applicants'
complaints was rejected, the Court considers it reasonable to award
the sum of EUR 1,000 covering costs under all heads.
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
Declares the complaint under Article 8 of the
Convention admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of
Article 8 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, the following
amounts,
(i) EUR
4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses.
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 30 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
