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DURDEVIC v. CROATIA - 52442/09 [2011] ECHR 1129 (19 July 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1129.html
Cite as:
[2011] ECHR 1129
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FIRST
SECTION
CASE OF
ĐURĐEVIĆ v. CROATIA
(Application
no. 52442/09)
JUDGMENT
STRASBOURG
19 July
2011
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 Đurđević
v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly Kovler, President,
Nina
Vajić,
Peer Lorenzen,
Elisabeth
Steiner,
Khanlar Hajiyev,
George
Nicolaou,
Mirjana Lazarova Trajkovska, judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 28 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 52442/09) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by three Croatian nationals, Mr Đuro Đurđević
(“the first applicant”), his wife Katica Đurđević
(“the second applicant”) and their son Danijel Đurđević
(“the third applicant”), on 14 September 2009.
The
applicants were represented by Ms Lovorka Kušan and
Mr Zlatko Kušan, lawyers practising in Ivanić
Grad. The Croatian Government (“the Government”) were
represented by their Agent, Ms Š. StaZnik.
On
10 September 2010 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1967, 1966 and 1994 respectively and live in
Kloštar-Ivanić.
1. The two incidents of 16 June 2009
(a) The applicants' version of events
The
applicants allege that on 16 June 2009 at about 9.30 p.m. the third
applicant and his brother Z.Ð were attacked in front of the
“Yogi” restaurant in Ivanić Grad by a group of six
men. The police intervened and took the third applicant and his
brother to the Ivanić Grad police station. The third applicant
refused to sign the police incident report, which stated that he had
1 g/kg of alcohol in his blood. When, at about 10.30 p.m., the
first and second applicants arrived at the police station they found
that the third applicant had been beaten up and had blood all over
him.
When
the second and third applicants went to their car, two police
officers, one of whom was S.M., approached them. The unidentified
police officer opened the door and S.M. pulled the second applicant
out of the car, twisting her right arm, punched her in the chest and
kicked her in the abdomen. S.M. then kicked the third applicant in
the abdomen and seized him by the throat. The second applicant called
the Zagreb Police to tell them about the incident, but there was no
reaction.
After
the incident, the applicants and other members of their family went
to Ivanić Grad Medical Emergency Centre (SluZba hitne
medicinske pomoći, ispostava Ivanić Grad), where the
doctor refused to record the applicants' injuries. The applicants and
other family members then went to Bjelovar General Hospital (Opća
Bolnica Bjelovar), where they were examined at about 2 a.m. It
was established that the second applicant had suffered contusions of
the chest, head and pelvis (contusio thoracis, capitis et
pelveos), while the third applicant had suffered contusions on
the head, with abrasions, and on the nose (contusio capitis cum
excoriations et contusio nasi). The injuries were classified as
minor bodily injuries.
On
an unspecified date, the first applicant complained to the Ministry
of Health and Social Welfare (Ministarstvo zdravstva i socijalne
skrbi) that his family had not been treated correctly at Ivanić
Grad Medical Emergency Centre. On 17 August 2009 S.L., the
principal of Zagrebačka County Health Centre (Dom Zdravlja
Zagrebačke Zupanije), submitted his observations to the
Ministry, stating that the applicants had pressured the doctor in
charge to diagnose injuries, but the doctor had behaved
professionally and refused to record injuries that did not exist.
(b) The Government's version of the events
The
Government alleged that on 16 June 2009 in the evening Z.Ð., a
son of the first and second applicants and brother to the third
applicant, was having dinner at the “Yogi” restaurant in
Ivanić Grad when M.Š., obviously very drunk, approached
him, insulted him because of his Roma origin and spat in his food.
Z.Ð. left the restaurant, but soon afterwards, at about
9.30 p.m., came back with the third applicant to retrieve his
car, which had been parked in front of the restaurant.
There
was a verbal and then a physical dispute between Z.Ð. and the
third applicant on the one side and M.Š. on the other. Z.Ð.
and the third applicant were aided by their relatives S.Ð., V.Ð.,
T.Ð. and B.Ð. The police soon arrived and the conflict then
ceased. The participants were taken to the Ivanić Grad police
station.
At
about 10.30 p.m. the same day a small group of Roma, including the
first and the second applicants, arrived at the police station in
search of M.Š. When the police officers warned them off, they
left the police station. However, the second applicant continued to
shout in front of the police station, insulting and threatening the
police officers. Police officers S.M. and A.B., now dressed in plain
clothes as they were no longer on duty, approached the second
applicant asking her to calm down, without using any force. The
second applicant then left.
The
applicants had then gone to the Ivanić Grad Medical Emergency
Centre, where the doctor was unable to detect any injuries to them.
(i) The proceedings concerning the events
of 16 June 2009 at about 9.30 p.m.
On
16 June 2009 the Ivanić Grad police interviewed Z.Ð., M.Š.
and the third applicant, as well as a witness, I.G., a waitress in
the “Yogi” restaurant.
I.G.
stated that at the critical time she had been serving Z.Ð. in the
restaurant when M.Š. had approached him, insulted him because
of his Roma origin and spat in his food. Z.Ð. had left and had
soon come back with three other Roma persons, a man and two women. A
dispute, at first verbal and then physical, had ensued. She could not
see clearly who had hit whom, but had heard verbal insults from
everyone.
The
third applicant said that after his brother had come home and told
him about the abuse by M.Š. at the restaurant, the two of them
had returned to the restaurant, since their car had been left there.
A group of unknown men, including M.Š., had approached them.
The third applicant had started to run home when suddenly somebody
had hit him in the back. He had fallen to the ground and the men had
continued to beat him all over the body. He had lost consciousness.
Z.Ð.
also described the incident in the restaurant and said that when he
had come back with the third applicant to retrieve his car, which was
parked in front of the restaurant, a group of unknown men, including
M.Š., had approached them. He and his brother had started to
run home. When he got home and saw that his brother was not there, he
had gone back to look for him. He had found him in Babonićeva
Street. They had telephoned their relatives V.Ð. and S.Ð. and
they had all returned to the restaurant, where they had found M.Š.,
who had immediately started to insult them and then approached them
and hit them. They had hit him back. M.Š. had then kicked S.Ð.
several times in the belly. The police had then arrived and the
fighting had ceased.
M.Š.
also described the incident in the restaurant, admitting that he had
verbally insulted Z.Ð. because of his Roma origin and then spat
in his food. He explained that after a few minutes Z.Ð. had come
back with his brother and two Roma women. They had started to insult
him and then attacked him. He had defended himself by hitting and
kicking the attackers. The police had then arrived and the fighting
had ceased.
On
9 July 2009 the Ivanić Grad police indicted M.Š., Z.Ð.,
the third applicant, S.Ð. and V.Ð. in the Ivanić Grad
Minor Offences Court. On the same day, on the basis of the police
report and without holding a hearing, that court found M.Š.,
Z.Ð., S.Ð. and V.Ð. guilty of:
“on 16 June 2009 at about 9.30 p.m. in Kloštar
Ivanić, ... in the “Yogi” bar ..., disturbing public
order and peace in that the first defendant M. entered the said
premises obviously drunk, approached a table where the second
defendant Z. was sitting, started to insult him ..., and spat in his
food. Immediately after that the second defendant Z. stood up and
left the restaurant. After some time, the second defendant Z. came
back, together with his brother, the third defendant D., to retrieve
his car, which was parked in front of the restaurant. The first
defendant M., together with three unknown men, approached them, and
then also the fourth defendant S. and the fifth defendant V., who
sided with the second and the third defendants and insulted the first
defendant and the others ...
After the verbal insults, the first defendant M.
attacked the fourth defendant S., who is pregnant, and the fifth
defendant V., as well as T. and B.Ð. who were in their company,
and hit them several times in the belly. The second defendant Z. and
the third defendant D. also got involved in the fight with the first
defendant M., all hitting and kicking each other.
When officers from the Ivanić Grad police station
arrived, the defendants stopped disturbing the peace.”
The
Minor Offences Court issued a minor-offences order finding M.Š.
guilty under section 6 of the Minor Offences Against Public Order and
Peace Act (Zakon o prekršajima protiv javnog reda i mira),
and fined him 1,170 Croatian kunas (HRK). The other defendants were
found guilty under Article 13 of the same Act and fined HRK 195. The
order in respect of M.Š. became final, while Z.Ð., S.Ð.
and V.Ð. objected, and on 17 November 2009 the same court, after
having heard the defendants, again found them guilty and issued a
warning against them. No appeal ensued.
The
proceedings in respect of the third applicant were severed since he
was a minor. On 22 October 2009 the Minor Offences Court found him
guilty of participating in a fight with his brother Z. against M.Š.
and a court reprimand was issued against him. No appeal ensued.
(ii) The proceedings concerning the events
of 16 June 2009 at about 10.30 p.m.
On
16 June 2009 the Ivanić Grad police station indicted the second
applicant before the Ivanić Grad Minor Offences Court, alleging
that on 16 June 2009 at about 10.30 p.m. she had disturbed the
peace in Ivanić Grad in that she had approached her husband's
car and shouted and pressed the car's horn. She had also verbally
insulted the police officers at the Ivanić Grad police station,
calling them thieves, threatening to burn their houses down and
cursing them.
On
17 June 2006 the Bjelovar General Hospital submitted a report to the
Ivanić Grad police station stating that the second applicant had
been seen by a doctor in that hospital on 17 June 2009 at 2 a.m. and
that she had sustained contusions to the chest, head and pelvis at
the hands of an unknown person; and that the third applicant had
suffered contusions on the head, with abrasions, and a contusion on
the nose.
A
medical report of 19 June 2009 shows that ultrasound examination of
the second applicant revealed a subcutaneous haematoma in the sacral
area measuring 92x74x23 millimetres.
On
1 July 2009 the Ivanić Grad police station interviewed M.Šk.,
a waitress at the “Argentina” bar located near the scene
of the incident of 16 June 2009 at about 10.30 p.m. She said that at
that time she had been at the terrace of the bar together with two
police officers, S.M. and A.B. She had heard noise coming from a
nearby car park, the noise of a car horn and shouting. Police officer
A.B. had gone to see what was going on. She had heard female voices
shouting. Other police officers soon joined him. Shortly afterwards
she had heard S.M. shout ”Stop! Police!”. She had gone
back into the bar and then come out again. She had seen police
officers approaching the car and the situation had calmed down. Soon
after that M.S., who lived nearby, had come to the bar saying that
the noise had woken him. She had told him not to go there and that
the police had already taken care of the situation. She also said
that it was not true that the police officers had used force, they
had only asked the unknown persons to calm down.
On
the same day the Ivanić Grad police station interviewed M.S.,
who said that on 16 June 2009 at about 10.30 p.m. he had been on the
terrace of the “Argentina” together with M.Šk. and
two police officers from the Ivanić Grad police station, S.M.
and A.B. He had heard noise from the nearby car park – someone
had been sounding a car horn. Officer A.B. had gone over to see what
was going on. The shouting had continued and judging by the voices he
had heard he had concluded that they belonged to several women.
Police officer S.M. had also gone to the car park. Soon after that he
had heard S.M. shout “Stop! Police!”. He had then left
the terrace and approached the car park, where he had seen a group of
Roma coming from the direction of the police station, talking loudly.
One of the women in the group had probably called the Zagreb Police
telling them that she had been beaten by two police officers in
Ivanić Grad, which was untrue. Soon after that one or two
uniformed police officers had appeared and the situation had calmed
down. He also said that it was not true that the police officers had
used force, they had only asked the unknown persons to calm down.
On
an unspecified date the second applicant lodged a criminal complaint
against the two police officers with the Ivanić Grad Municipal
State Attorney's Office (Općinsko drZavno odvjetništvo
u Ivanić Gradu), on charges of ill-treatment while on duty
or in the exercise of services on behalf of a public authority
(zlostavljanje u obavljanju sluZbe ili javne ovlasti). She
alleged that two police officers, one of whom was S.M., had beaten
her and her son and that they had then started to shout.
On
12 October 2009 an identification parade was held at the Ivanić
Grad police station with five men, one of whom was police officer
A.B. The second applicant did not identify any of the men as the
perpetrators of the alleged violence against her on 16 June 2009.
On
30 November 2009 the Ivanić Grad Municipal State Attorney's
Office dismissed the second applicant's complaint, finding, inter
alia, that she had been unable to identify the alleged
perpetrators during the identification parade, and that the
surveillance camera at the Ivanić Grad police station had not
recorded anything suspicious. The relevant part of the decision
reads:
“Katica Ðurđevic lodged a criminal
complaint against police officer S.M and an unknown police officer
from the Ivanić Grad police station for the criminal offence of
ill-treatment while on duty or in the exercise of services on behalf
of a public authority ...
In her criminal complaint she alleges that on 16 June
2009 at about 11 p.m. she and her husband Ðuro went to the Ivanić
Grad police station because their sons Z. and Danijel had been taken
there. Danijel was covered in blood and she took him out of the
police station and they sat in their car parked in front of the
police station. While she was lighting a cigarette a police officer
opened the car door, grabbed her by her right arm, almost breaking
it, dragged her out of the car and kicked her in the chest and belly.
S.M., who was with the police officer, took Danijel out of the car,
kicked him in the belly, grabbed him by the neck and lifted him
against the car. This whole event was recorded by the surveillance
video camera, and she suggests that the recording be seen.
S.M. said that he was employed as a police officer in
the Ivanić Grad police station and that on 16 June 2009 he had
been sent to Kloštar Ivanić because [someone was]
disturbing the peace. At about 9.45 p.m. he had arrived at the “Yogi”
restaurant, where he had found M.Š. sitting in front of the
restaurant, obviously drunk, and several persons of Roma origin who
were shouting at M.Š. He and other police officers who had
arrived saw that there had been a fight between M.Š. and the
Roma persons and that M.Š. had hit these persons several
times. He had taken M.Š. to the Ivanić Grad police
station and then he had gone off duty and left the police station at
about 10.15 p.m. to go to the “Argentina” bar. At about
10.30 p.m. he had heard noises and cursing outside the bar ... so he
had gone with another police officer to see what was going on. As
they approached an “Opel” type car with Dutch licence
plates he had heard a woman's voice shouting even louder and someone
was also sounding the car horn, so they had tried to calm them down.
They had not calmed down, however, and more police officers had come
out of the police station, and he had returned to the bar. He
asserted that neither he nor any of the other police officers had
used any force against any of the persons present.
Danijel Ðurđević said that ... he had been
taken to the police station, where he had been told that he had 1
g/kg of alcohol in his blood, which was not true, so he had refused
to sign the report. Soon after that his parents had arrived and when
he was sitting in their car, parked outside the police station, a man
in grey clothes had come and opened the car door, grabbed his mother
Katica by the arm, dragged her out of the car and hit her. After that
another unknown man in plain clothes had grabbed him by his arms,
dragged him out of the car and kicked him in the belly, grabbed him
by the neck and pressed him against the car.
M.S. said that on 16 June 2009 at about 10.30 he had
been in the “Argentina” bar situated next door to the
Ivanić Grad police station. The waitress was M.Šk. and
there was also another customer, S.M. At one moment he had heard
noises and the sound of a car horn coming from the parking lot and
S.M. had gone there. He was also curious and had gone out onto the
terrace to see what was going on. He had seen a large group of Roma
persons coming from the direction of the police station, talking
loudly, and one of the women had called the police complaining that
she had been beaten by two policemen, which was untrue since M.S. had
been standing only a couple of metres away and had seen everything.
After that a few more police officers had arrived and the noise had
stopped.
M.Šk. said that she had been working as a
waitress when she heard noise coming from the car park – a car
horn and women shouting. She had heard someone shout “Stop!
Police!”, and had gone back into the bar. She explained that
the police officers had not used any force but had merely asked the
persons present to calm down.
...
The medical report of 17 June 2009 from Bjelovar General
Hospital states that Katica Ðurđević allegedly suffered
blows to the chest, head and pelvis, without mentioning visible signs
of injuries.
The criminal offence of ill-treatment while on duty or
in the exercise of services on behalf of a public authority is
committed by an official who in the performance of duties on behalf
of a public authority ill-treats or insults another person or behaves
in a manner which harms his or her dignity. An identification parade
was held in the police station but Katica Ðurđević
failed to pick out the person who had aggressed her on 16 June 2009
from among the five police officers in the line-up.
The Ivanić Grad police station submitted video
recordings from the surveillance video cameras for 16 June 2009,
which showed no evidence that police officers had beaten Katica
Ðurđević or any other person.
Neither the information collected nor the video tape
indicated that S.M. or any other police officer had hit Katica
Ðurđević or ill-treated her in any other manner, and
therefore there is no reasonable suspicion that he committed a
criminal offence.
...”
The
second applicant was instructed that she could take over the
prosecution and bring charges before the Ivanić Grad Municipal
Court within eight days.
On
17 December 2009 the second applicant brought charges (optuZni
prijedlog) against S.M. and an unknown police officer before the
Ivanić Grad Municipal Court (Općinski sud u Ivanić
Gradu). She alleged that on 16 June 2009 at about 10.30 p.m. the
two police officers had beaten her and her son Danijel. On 29 January
2010 the court asked the second applicant to amend her submissions
within three days. The second applicant complied. However, on 4 March
2010 the Municipal Court found that the second applicant's
submissions did not take the form required by the Code of Criminal
Procedure.
The
second applicant has seen doctors on several occasions since the
alleged incident. On 8 February 2010 she was diagnosed with a mild
chronic neural lesion (blaZa kronična neuralna lezija).
2. The alleged incidents of violence against the third
applicant at the school he is attending
The
medical report of 27 October 2008 on the third applicant shows that
he complained that he had been hit by a pupil at the school he was
attending. He had a deviation of the nasal septum which could be of a
post-traumatic character. There were no signs of broken nasal bones.
On
19 December 2008 the first applicant complained to the Government
that his son, the third applicant, had been constantly insulted and
frequently beaten by other pupils because of his Roma origin.
An
interview with the third applicant was conducted at the Ivanić
Grad police station on 12 January 2009. He explained that on an
unspecified date in late October 2008, after physical training, he
had gone to the changing room to pick up his things. Pupil L.R. had
been in front of him. Someone had pushed L.R. and his head had hit
the third applicant's face, hurting his nose. He had reported it to
the class teacher, who had sent him to see a doctor. He had not had
any other symptoms and the pain had ceased after a few days.
On
9 January 2009 the Ministry of Science, Education and Sport asked the
school authorities to reply to the first applicant's allegations of
19 December 2008. The school prepared two reports. The relevant
part of the first report, drawn up on 14 January 2009 by the
applicant's class teacher, reads:
“... after only two weeks at this school I
encountered conflicts between pupils. D. Ðurđević
first reported a run-in with another pupil when pupil L.R.
unintentionally hit him on the nose with his head because Danijel was
standing behind L.R. when L.R. swung his head back. ... Danijel came
to me complaining that his nose hurt and told me that L.R. had hit
him hard. He made it quite clear that the blow had been
unintentional, which other pupils who witnessed the incident
confirmed. The next day Danijel complained that his nose still hurt,
so I sent him to see a doctor. I also tried to inform the Ðurđević
family, but their mobile telephone was switched off. Since it was
established that the contact between Danijel and L.R. had been
accidental, with no intention of hurting Danijel, I had no reason to
punish anyone. This happened on 21, 22 and 23 October 2008.
On 22 October 2008, during a break, a verbal and
physical conflict involving pupils I.D., M.K., L.R. and D. Ðurđević
occurred. From interviews with these pupils I learned that I.D., M.K.
and L.R. were playing with a box ... which annoyed Danijel, who
wanted to throw the box away, so Danijel and the other pupils started
arguing. Pupils I.D., M.K. and L.R. said that after some pushing and
shoving Danijel threatened them with physical violence and I.D., M.K.
and L.R. answered by swearing at him. Danijel then hit M.K. and L.R.
During the following break the pupils reported the incident to me and
I reported it to the authorities. A class teacher gave pupils I.D.,
N.K. and L.R. oral warnings. Pupil D. Ðurđević was
given a written warning because he had already had oral warnings.
On 16 December, during a break, my pupils came to me to
report a fight started by Danijel. They told me that P.G. and D.A.
had been standing outside the history classroom talking when Danijel
had arrived and kicked P.G.'s bottom. D.A. had asked him why had he
done it and Danijel had insulted her. She had returned the insults
and entered the classroom. Danijel had followed her in, pressed her
against a wardrobe in the classroom, grabbed her by her hair and
kneed her in the hip and belly. The pupils had seen Danijel hit her
seven times before the boys had managed to separate them. With the
help of the history teacher ... Danijel confessed that he had started
the fight and explained what he had done ... He confirmed the pupils'
version of events and wrote it all down on paper, as did the girls
who witnessed it. He even demonstrated how he had pressed D.A.
against the wardrobe and held her while he hit her. I reported the
incident to a pedagogue, V.V., who immediately talked to Danijel,
D.A. and the pupils who witnessed the incident, then called Danijel's
and A.'s parents and the police. Defectologist A.N. was also informed
and set about resolving the situation. I informed the teachers of the
incident at their meeting on 19 December 2008 and suggested giving
Danijel Ðurđević a written reprimand for causing and
participating in verbal and physical conflicts, inflicting bodily
injuries on D.A. and violating the school rules by not wearing school
slippers, and that suggestion was unanimously accepted.
As regards unacceptable behaviour towards pupil
Ðurđević, Danijel complained to me on three occasions
that other pupils had been teasing him ... about his age and his
alleged liking for a pupil in another class. After Danijel's
complaint I warned the pupils concerned and instructed them to avoid
verbal conflicts. I also talked to Danijel on several occasions, and
he told me that if the teasing continued he would hit the pupils
concerned. On the basis of these interviews I concluded that Danijel
identified verbal insults with physical violence and considered it
appropriate to react to teasing with violence, without showing any
remorse.
After the incident in December when Danijel inflicted
injuries on D.A, the pupils told me that Danijel's usual reaction to
teasing among the pupils included threats of physical violence,
swearing and inappropriate comments about a girl pupil from his
class, with allusion to her physical attributes and to sexual
activity. As an example of his typical behaviour, the pupils
mentioned Danijel's kicking of pupils in passing. He would bend his
knee and kick them with a sudden backwards movement of his leg.
During our latest conversation the pupils told me that they had been
avoiding Danijel for some time, explaining that they had stopped
teasing him out of fear that he would put his threats of physical
violence into practice. Danijel, on the other hand, has never
complained to me that any of the pupils have tried to harm him.”
The
relevant part of the second report, drawn up on 15 January 2009 by
the pedagogue at the same school, reads:
“Danijel Ðurđević, has very frequent
verbal conflicts with his classmates and sometimes with his teachers
as well. The interviews with him reveal that in his opinion the cause
of these conflicts is that he 'wants to have fun and make jokes but
the others do not see it that way.' On innumerable occasions the
class teacher, the defectologist and I have explained to him that
what he perceives as a joke is not necessarily [seen as such] by
others, and that sometimes people are not in the mood for jokes but
that does not require a vehement reaction.
He is repeating the sixth grade and at the beginning of
the school year he said he missed his friends from his former class,
but he also promised to be a better pupil, to listen to teachers, me
and the defectologist and to refrain from arguing with other pupils.
I praised him for that attitude; he showed some improvement in his
school work, but the conflicts with other pupils have persisted.
Mostly pupils from his class are involved, but sometimes he would go
to the class attended by his sister D. and try to solve her problems,
in an inappropriate manner, shouting and threatening younger pupils.
As regards educational measures, on 23 September [2008] he was issued
an oral reprimand by a class teacher and on 28 October 2008 a written
warning for fighting with other pupils, of which the parents were
informed orally by the class teacher. The other pupils involved in
the fighting were given oral warnings while Danijel got a written
warning for repeating the unacceptable behaviour for which he had
been warned orally on 23 September 2008.
On 16 December 2008 during a break ... there was a
scuffle between Danijel and pupil D.A. The pupils who witnessed it
came to me and the class teacher. [We found] D.A. at the scene,
crying, with dishevelled hair, obviously in shock, clutching her
belly with both hands. The pupils told us what had happened. I took
D.A. to my office and assessed whether an ambulance had to be called.
D.A. said that she was frightened and had pains in her head and
belly, but that there was no need to see a doctor. She had no
external injuries, save for pulled hair and red marks on her belly.
Danijel had no injuries, he said that he had hit her
because they had said something to him which had made him angry. The
parents of both pupils were informed. The Ðurđević
parents came immediately, and D.A.'s mother came later ... The
Ðurđević parents wanted to talk with D.A. immediately
to see what had happened. Since they were shouting and talking at the
same time as Danijel, I asked them to calm down and told them that
they had no right to question D.A. without her parents being present.
As they had been informed about the incident, I told them to go home
and that my duty was to report the incident to a welfare centre and
the police, and I asked them to take Danijel home. Dissatisfied with
what I had said, they reacted inappropriately, especially Mrs
Ðurđević, complaining that when Danijel had been
insulted there had been no reaction and the police had not been
called. They said they would deal with it in their own way. An hour
later D.A.'s father came to my office, upset and disappointed that I
had not called an ambulance and that the police had not come to the
school.
At a teachers' meeting on 19 December 2008 it was
decided that a written reprimand would be issued against Danijel for
serious physical conflict in which he had inflicted bodily injury.
Although this was not his first attack on a pupil at the school and
the usual measure would be a harsh reprimand, in view of his overall
social condition, which affected his development, a more lenient
punishment was issued.
It is to be stressed that we regularly talk to Danijel,
at his request (at least two or three times a week), and we also
provide him with adequate aid in terms of conversations with him,
alone and together with other pupils; he receives help with his
school work (once I personally cleaned the muddy sneakers he wore to
school instead of slippers, because he did not know how to do it).
Today he is reported to have punched pupil I.M. on the
left cheek because I.M. threw his cap at him.
As regards the incident when his nose was hurt on 21 and
22 October 2008 (I do not know the exact date because Danijel cannot
remember exactly when it happened), Danijel said in the presence of
his parents that he happened to be standing behind a boy who swung
his head back because he had long hair, and that his nose had been
like that before, which is confirmed by medical documents submitted
by the parents ...
I would like to stress that in both my personal and my
professional capacity I have done a lot to help the Ðurđević
parents and their children. Many times the Ðurđević
parents have objected that we do not know how to resolve problems
with Roma people, alleging that the pupils at school, as well as
other people, had been denigrating them. I expressed my regret at
such behaviour and stressed that they could not have experienced
anything like that from me (which they confirmed), and reassured them
that I would certainly react in the event of such behaviour by the
pupils, in order to protect their children, and direct the pupils as
to the correct attitude to adopt towards the Roma. I could not be
held responsible for other people's reactions because these things
are a matter of personal culture.
I advised them to tell their older, grown-up children
who come to the school to take their younger siblings home to wait
outside the school or not to enter the school before the end of
classes without registering with a pupil on duty (they would get
angry when asked to show their identity cards by pupils on duty, and
would go to the classrooms without authorisation). In conversations
with them, they have admitted that their children also sometimes use
bad language they hear at home, and I think that their complaint that
their children are the only ones ill-treated at school is not true.
The social services and the police were informed about
the supervision of pupils in order to help them with their
existential problems.
On
an unspecified date the second applicant lodged a criminal complaint
with the Velika Gorica Municipal State Attorney's Office (Općinsko
drZavno odvjetništvo u Velikoj Gorici) on charges of
bodily harm (tjelesna ozljeda). It appears that this
complaint was related to beatings the third applicant had suffered at
school.
On
24 February 2009 the second and third applicants were invited to the
Velika Gorica Municipal State Attorney's Office for an interview in
connection with the incident of 16 December 2008.
The
medical report of 26 March 2009 indicates that the third applicant
claimed that a pupil had hit him in the back with a ball and that he
had been beaten by pupils at school and insulted constantly for a
week. He alleged that he had pains in his belly and back. There were
no visible injuries. He was diagnosed with abdominal contusions
(contusio abdominis). The ultrasound examination did not show
any injuries. He refused hospitalisation.
On
18 September 2009, the first applicant lodged a complaint with an
unspecified body against the school authorities who were, in his
view, not being proactive in protecting his son, the third applicant,
from constant beatings.
On
15 December 2009 the third applicant was examined in connection with
his headaches by the ophthalmologist in Dubrava Hospital (Klinička
bolnica Dubrava). The applicant alleged that he had been beaten
up at school and out of school. The doctor requested the opinion of
the school authorities and the school psychologist.
On
8 February 2010 the third applicant was examined again, and was
diagnosed as having serious impairment to the sight in his right eye
as a result of a contusion (cephaela gradus gravis post
contusionem). The applicant said that he had been beaten up at
school and out of school. The doctor observed that there had been no
response from the school authorities or the school psychologist and
asked once again for their opinion. The third applicant was referred
to a neurologist and a brain surgeon. There is no indication that he
followed the recommendation.
On
the same day the Velika Gorica Municipal Court found the third
applicant guilty of inflicting bodily harm on D.A. on 16 December
2008 and ordered him to apologise to D.A. and to be placed under
strict care and supervision.
On
an unspecified date the second applicant complained about the
violence against the third applicant in school and submitted medical
documentation. She alleged that she and the boy's father had
complained to the school about Danijel being beaten by other pupils
on many occasions and that nothing had been done. She also alleged
that they (the parents) had been thrown out of the school and not
allowed to pay insurance for Danijel at the school. She enclosed
medical documentation concerning the third applicant dated 17 March
2010, showing that he had been hit on the head on 26 March and 9
December 2009 and 16 February 2010.
On
7 April 2010 the school head master drew up a report at the request
of the Zagreb Clinic for the Protection of Children. The relevant
part of the report reads:
“Observations about pupil Danijel Ðurđević
...
In the sixth grade [Danijel] has had frequent verbal
conflicts with pupils from his class (sometimes also physical
conflicts such as pushing, or pulling clothes), and sometimes with
teachers as well. The interviews with him reveal that in his opinion
the cause of these conflicts is that he 'wants to have fun and make
jokes but the others do not see it that way'. On innumerable
occasions the class teacher and professional assistants at school
have explained to him that what he perceives as a joke is not
necessarily [seen as such] by others and that sometimes people are
not in the mood for jokes, but that does not require a vehement
reaction.
The police intervened for the first time during
Danijel's sixth grade in December 2008, after an serious incident
with a pupil. ...Danijel grabbed the girl by the head and kicked her
in the belly. After our intervention with the relevant outside
services the parents, possibly dissatisfied with our conduct,
complained to the Office for National Minorities, which asked for our
observations.
[the incident when Danijel was hit on the nose is
described]
...
In December last year Danijel complained about having a
headache because 'he had been hit with an iron bar'. During the
interview with him, we learned that the previous day Danijel had been
hit by unknown persons ..., out of school, after lessons. He refused
our suggestion to call his parents to come to take him home. Instead,
he asked for painkillers as he frequently does ... After a few
moments he left the school without authorisation, went to see a
doctor and returned after an hour with two prescriptions ...
On 4 March 2010 the Ðurđević parents were
invited to the school to fetch their daughter, who was in sixth grade
and who was throwing chairs and benches in her classroom following a
verbal conflict with other pupils in her class. When Danijel heard
about it, he tried to 'solve the situation in his way', by
threatening the pupils and teachers (he mentioned a knife). The
teachers calmed him down but he had already called his brother or
father on a mobile telephone and soon his grown-up elder brother
arrived at the school. At the entrance he brushed past the pupil on
duty and shouted at him, and opened various classroom doors looking
for his sister and brother. One of the teachers ... heard the noise
and asked the young man to stop making noise and disturbing classes
and told him that he would find his brother and sister. But the
brother continued to address the teacher in an inappropriate manner
and threatened to 'take things into his own hands'. The teacher
immediately called the police and it is possible that this is
incident the Ðurđević parents were referring to in
connection with police intervention.
Danijel frequently complains to teachers of headaches
and asks for pills and permission to leave the classroom. Sometimes
he leaves without authorisation or without the teachers' knowledge.
...
In principle we do not give pills to pupils but call the
parents to pick up their children and take care of them.
Danijel is also complaining less frequently of being
insulted by other pupils. We have talked to these pupils and taken
educational measures when such incidents continued. It has been
noticed lately that Danijel has been refusing schoolwork, has reacted
vehemently to advice and would sometimes address the pupils and
teachers in an inappropriate manner.
I would like to stress that the class teachers informed
the parents at parent-teacher meetings of verbal incidents involving
individual pupils, and the parents reacted more than correctly and
apologised. I would also like to stress that six other Roma pupils
attend our school and that they are good pupils and cooperation with
their parents is satisfactory for all.”
II. RELEVANT DOMESTIC LAW
The
relevant part of the Code of Criminal Procedure (Official Gazette
nos. 62/2003 – Zakon o kaznenom postupku) provides as
follows:
Article 2
“...
(3) Where not otherwise provided by law, the State
Attorney shall bring a criminal prosecution where there is a founded
suspicion that an identified individual has committed a criminal
offence liable to official prosecution and where there are no
statutory obstacles for prosecution of that person.”
Article 171
“(1) All State bodies and all legal entities are
obliged to report criminal offences liable to official prosecution,
whether they have been informed thereof or have learned about such
offences on their own.
...”
Article 173
“(1) A criminal complaint shall be lodged with a
competent State Attorney in writing or orally.
...”
The
relevant part of the Minor Offences against Public Order and Peace
Act (Official Gazette nos. 5/1990, 47/1990 and 29/1994) reads:
Section 6
“Anyone who acts in an exceptionally insolent and
impolite manner in public by insulting citizens or disturbing their
peace, shall be fined for a minor offence ... or imprisoned for up to
thirty days.”
Section 13
“Anyone who fights, quarrels or shouts in public
or otherwise disturbs public order and peace, shall be fined for a
minor offence ... or imprisoned for up to thirty days.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION IN
CONNECTION WITH THE INCIDENT ON 16 JUNE 2009 AT ABOUT 9.30 P.M.
The
third applicant complained that on 16 June, at about 9.30 p.m., he
had been beaten up by private individuals and that the national
authorities had done nothing to identify and punish the perpetrators.
He relied on Article 3 of the Convention which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Admissibility
1. The parties' submissions
The
Government argued that the applicants had not exhausted domestic
remedies because they had not submitted a criminal complaint with the
competent State Attorney's Office or taken private action against the
alleged perpetrator.
The
applicants argued that by informing the police they had exhausted
domestic remedies.
2. The Court's assessment
The
Court does not have to address the exhaustion issue raised by the
Government in connection with the incident at issue since the
complaints related to it are in any event inadmissible for the
following reasons.
Assuming
that the facts surrounding the incident in question fell within the
ambit of Article 3 of the Convention, the Court would accept that
this Article required the implementation of adequate criminal-law
mechanisms (see Beganović v. Croatia, no. 46423/06, §
69, ECHR 2009 ... (extracts), with further references). In this
connection Article 3 requires States to put in place effective
criminal-law provisions to deter the commission of offences against
personal integrity, backed up by law-enforcement machinery for the
prevention, suppression and punishment of breaches of such provisions
(see, mutatis mutandis, A. v. the United Kingdom, 23
September 1998, § 22, Reports 1998 VI, and Nachova
and Others v. Bulgaria [GC], nos. 43577/98 and
43579/98, § 96, ECHR 2005-VII), and this requirement also
extends to ill-treatment administered by private individuals (see
Šečić, cited above, § 53). On the other
hand, it goes without saying that the obligation on the State under
Article 1 of the Convention cannot be interpreted as requiring the
State to guarantee through its legal system that inhuman or degrading
treatment is never inflicted by one individual on another or that, if
it is, criminal proceedings should necessarily lead to a particular
sanction. In order that a State may be held responsible it must in
the view of the Court be shown that the domestic legal system, and in
particular the criminal law applicable in the circumstances of the
case, fails to provide practical and effective protection of the
rights guaranteed by Article 3 (see X and Y v. the
Netherlands, 26 March 1985, § 30, Series A no. 91, and
A. v. the United Kingdom, cited above, opinion of the
Commission, § 48).
The
Court notes at the outset that the present case does not concern the
verbal abuse against Z.Ð. inside the “Yogi”
restaurant while he was having dinner, since Z.Ð. has not
complained to the Court and is not the applicant in the present case.
The present case concerns the incident that took place at about 9.30
p.m. in front of the “Yogi” restaurant when Z.Ð. and
his brother, the third applicant, came back to retrieve their car.
As
regards the incident in question, the Court notes that the police
interviewed M.Š., Z.Ð. and the third applicant, who were
all involved in the incident, and a neutral witness I.G. They all
gave similar accounts of the event in question and the police filed
an indictment with the Ivanić Grad Minor Offences Court. That
court, without holding a hearing, and on the basis of the police
report, found M.Š. and the other participants, but not the
third applicant, guilty of verbal insults and fighting. M.Š.
was fined HRK 1,170. This ruling became final.
The
other perpetrators objected, and the same court held a hearing and
again found them guilty.
The
third applicant was also found guilty of participating in a fight. He
did not lodge an appeal against that first-instance decision.
Against
this background and in view of the nature of the incident in
question, the Court finds that the national authorities established
the relevant facts and, by finding M.Š. guilty and fining him,
have properly discharged their procedural duty under Article 3 of the
Convention.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3(a) and 4 of the
Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION IN
CONNECTION WITH THE INCIDENT ON 16 JUNE 2009 AT ABOUT 10.30 P.M.
The
second and third applicants also complained that on 16 June 2009, at
about 10.30 p.m., they had been ill-treated by the police and that
the official investigation into the ill-treatment was ineffective.
They relied on Article 3 of the Convention.
A. Admissibility
1. The parties' submissions
The
Government argued that the applicants had not taken over the
prosecution of the alleged perpetrators; or lodged a civil action for
damages or an administrative complaint for an unlawful act.
The
applicants argued that by informing the police they had exhausted
domestic remedies. The second applicant had informed the Velika
Gorica Municipal Court about it. In any event it was for the State to
conduct an effective and thorough investigation into her allegations
of police brutality, supported by medical evidence, irrespective of
her own actions.
2. The Court's assessment
The
Court reiterates that under Article 35 § 1 of the
Convention, it may only deal with an application after all domestic
remedies have been exhausted. The purpose of Article 35 is to afford
the Contracting States the opportunity of preventing or putting right
the violations alleged against them before those allegations are
submitted to it (see, for example, Mifsud v. France
(dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII). The
obligation to exhaust domestic remedies requires an applicant to make
normal use of remedies which are effective, sufficient and accessible
in respect of his Convention grievances. To be effective, a remedy
must be capable of remedying directly the impugned state of affairs
(see Balogh v. Hungary, no. 47940/99, § 30,
20 July 2004).
The
Court further reiterates that in cases where an individual has an
arguable claim under Article 3 of the Convention, the notion of an
effective remedy entails on the part of the State a thorough and
effective investigation capable of leading to the identification and
punishment of those responsible (see Selmouni v. France [GC],
no. 25803/94, § 79, ECHR 1999-V). The Court has held on
many occasions that this requirement cannot be satisfied solely by
instituting civil proceedings (see, among other authorities,
Krastanov v. Bulgaria, no. 50222/99, § 60, 30 September
2004).
In
the instant case, the second applicant lodged a criminal complaint
against the police officers. The criminal complaint triggered a
preliminary investigation but was ultimately dismissed by the State
Attorney due to lack of evidence that the officers had committed the
alleged criminal offence.
It
is true, as the Government argued, that the applicants could have
pressed charges against the officers and attempted to pursue criminal
proceedings against them as subsidiary prosecutors. However, as the
Court has already found in similar cases (see Matko v Slovenia,
no. 43393/98, § 95, 2 November 2006, and Stojnšek
v. Slovenia, no. 1926/03, § 79, 23 June 2009), having
been informed of the criminal complaint the State Attorney was under
a duty to ensure that the preliminary investigation was carried out,
that the evidence was obtained and that, if the evidence against the
alleged perpetuators was sufficient, criminal proceedings were
pursued against them. The Court therefore sees no reason to require
the applicants to pursue the prosecution of the accused officers on
their own by pressing charges, this being the responsibility of the
State Attorney, who is certainly better placed, if not exclusively
competent, in that respect (see Matko, § 90, and
Stojnšek, § 79, both cited above). It accordingly
concludes that by lodging a criminal complaint the applicant afforded
the State an opportunity to put matters right by instituting an
effective official investigation (see H.D. v. Poland (dec.),
no. 33310/96, 7 June 2001). The Court will assess on the merits
of the case whether such an investigation was in fact carried out.
As regards the Government's argument that the
applicant could have brought a civil action for damages against the
State, the Court has repeatedly held that the procedural obligation
of the State under Article 3 to conduct a thorough, official,
effective and prompt investigation into allegations of ill-treatment
cannot be substituted by the payment of damages. The Court confirms
that a civil action is not capable, without the benefit of the
conclusions of a criminal investigation, of making any findings as to
the identity of the perpetrators, much less of establishing their
responsibility. Furthermore, a Contracting State's obligation under
Article 3 of the Convention to conduct an investigation capable of
leading to the identification and punishment of those responsible in
cases of ill-treatment might be rendered illusory if, in respect of
complaints under that Article, an applicant were required to exhaust
an action leading only to an award of damages (see, Parlak and
Others v. Turkey (dec.), nos. 24942/94, 24943/94 and 25125/94, 9
January 2001; Okkalı v. Turkey, no. 52067/99, § 58,
ECHR 2006 XII (extracts); and Taymuskhanovy v. Russia,
no. 11528/07, § 75, 16 December 2010).
Awarding
damages in civil proceedings could only complement by way of redress
the results of a thorough and effective investigation capable of
leading to the punishment of those responsible. In a situation where
no such investigation has taken place, a civil action is not a
sufficient remedy.
As
regards a claim before the Administrative Court, the Court considers
that such an action could in no way replace the requirement for an
effective, thorough, official investigation into the allegations of
ill-treatment by State officials.
In
view of the above, the Court rejects the Government's objection that
the applicant should have instituted criminal proceedings as a
subsidiary prosecutor. Nor does it accept the objection that the
applicant should have lodged a claim with the Administrative Court
(see also Lukenda v. Slovenia, no. 23032/02, §§
47-53, ECHR 2005-X, and Stojnšek, cited above, §
80) or a civil claim for compensation. It notes that the Government
have submitted no convincing arguments as to the effectiveness of
these remedies in respect of the applicant's complaint under Article
3.
The
Court finds that there are no other reasons to reject this complaint
as inadmissible and it must therefore be declared admissible.
B. Merits
1. The parties' submissions
The
applicants complained that on 16 June 2009 at about 10.30 p.m.
the second and the third applicants had been beaten by two
plainclothes policemen and that no effective investigation into their
allegations of police brutality had taken place. As regards the
identification parade held on 12 October 2009, the second
applicant maintained that she had not been able to recognise A.B. as
one of the police officers who had beaten her because he was not
wearing his glasses as he had been on 26 June 2009 at the material
time.
The
Government argued that at the time of the event officers A.B. and
S.M. were not on duty and therefore the second applicant's
allegations did not concern police brutality. There was no evidence
that the police officers had beaten any of the applicants. As to the
investigation into the allegations of police brutality, the
Government maintained that the police had interviewed the second and
third applicants and their relatives D.Ð. (born in 1969), Z.Ð.,
S.Ð. and D.Ð (born in 1972). as well as witnesses M.Šk.
and M.S., and examined the video tapes of the surveillance cameras.
All the police officers who were in any way implicated had submitted
their reports. The police had also held an identification parade but
the second applicant had not recognised A.B. as one of the alleged
attackers. On the basis of that inquiry the Ivanić Grad State
Attorney's Office had dismissed the applicants' criminal complaint
for lack of evidence.
2. The Court's assessment
(a) General principles
As
the Court has stated on many occasions, Article 3 enshrines one of
the most fundamental values of democratic societies. It prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances and the victim's
behaviour (see Iwańczuk v. Poland, no. 25196/94, §
49, 15 November 2001, and E. and Others v. the United Kingdom,
no. 33218/96, § 88, 26 November 2002).
The
Court reiterates that ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The
assessment of this minimum is relative: it depends on all the
circumstances of the case, such as the nature and context of the
treatment, its duration, its physical and mental effects and, in some
instances, the sex, age and state of health of the victim (see
Costello-Roberts v. the United Kingdom, 25 March 1993, § 30,
Series A no. 247-C, and A. v. the United Kingdom, cited
above, § 20).
Treatment
has been held by the Court to be “inhuman” because, inter
alia, it was premeditated, was applied for hours at a stretch and
caused either actual bodily injury or intense physical and mental
suffering (see Labita v. Italy [GC], no. 26772/95, §
120, ECHR 2000-IV). Treatment has been considered “degrading”
when it was such as to arouse in its victims feelings of fear,
anguish and inferiority capable of humiliating and debasing them and
possibly breaking their physical or moral resistance (see Hurtado
v. Switzerland, 28 January 1994, opinion of the Commission, § 67,
Series A no. 280, and Wieser v. Austria, no. 2293/03,
§ 36, 22 February 2007).
(b) Application of these principles in the
present case
As
regards the Government's assertion that A.B. and S.M. were not acting
in their official capacity during the incident of 16 June 2009 at
about 10.30 p.m. since they had not been on duty at that time, the
Court notes that it is undisputed that both A.B. and S.M. were police
officers of the Ivanić Grad police station. Witnesses M.Šk.
and M.S. both testified that A.B. identified himself as a police
officer by shouting “Stop! Police!”. Furthermore, A.B.
and S.M. had no other reason to intervene in the situation in
question than in their capacity as police officers. Against this
background, the Court considers that the incident in question may be
seen as allegations of police violence.
As
to the severity of the treatment, the Court notes that the medical
documentation of 17 June 2009 in respect of the third applicant shows
that he suffered from contusions to the head, with abrasions, and to
the nose. Where the second applicant is concerned, the documentation
of 17 June 2009 states that she suffered from contusions to the
head, chest and pelvis but had no visible injuries. However, an
ultrasound examination of 19 June 2009 revealed that she had a
subcutaneous haematoma measuring 92x74x23 millimetres in the sacral
area.
At
this juncture the Court considers it appropriate to reiterate,
regarding the use of force by the police, that in defusing
situations, maintaining order, preventing offences, catching alleged
criminals and protecting themselves and other individuals, police
officers are entitled to use appropriate means, including force.
Nevertheless, such force may be used only if indispensible and must
not be excessive (see Ivan Vasilev v. Bulgaria, no.
48130/99, § 63, 12 April 2007, with further references).
Recourse to physical force which has not been made strictly necessary
by the individual's own conduct diminishes human dignity and is in
principle an infringement of the right set forth in Article 3 of the
Convention (see Kuzmenko v. Russia, no. 18541/04, § 41,
21 December 2010).
In
the instant case there have been no allegations that the second and
third applicants' conduct required the use of any force. While it was
alleged that the second applicant was shouting and sounding a car
horn, it has never been alleged that she in any manner attacked the
police officers present or any other person, or acted in any other
manner that would warrant the use of force against her. Against that
background and in view of the above principles, the Court finds that
in the present circumstances, where there were allegations that
physical force was used by the police officers, the abovementioned
injuries of the second and the third applicants were sufficiently
serious to reach the “minimum level of severity” under
Article 3 of the Convention.
(i) Substantive aspect of Article 3 of the
Convention
The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence. In assessing evidence, the Court has
generally applied the standard of proof beyond reasonable doubt.
However, such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted
presumptions of fact (see Salman v. Turkey [GC], no. 21986/93,
§ 100, ECHR 2000-VII, and Dedovskiy and Others v. Russia,
no. 7178/03, § 74, 15 May 2008).
In
the present case there is no evidence, save for allegations by the
second and third applicants, that the police officers used force
against them. On the other hand, the medical documentation submitted
shows that both the second and the third applicants sustained bodily
injuries.
However,
in view of the lack of assessment by the national authorities as to
the exact circumstances of the incident in question, the Court is
unable to establish beyond reasonable doubt whether the police
officers used force against the second and the third applicants and
whether the injuries sustained by them were the result of police
violence.
That
being so, the Court will conclude that there has been no violation of
the substantive aspect of Article 3 of the Convention.
(ii) Procedural aspect of Article 3 of the
Convention
The
Court recalls that where an individual makes a credible assertion
that he has suffered treatment infringing Article 3 at the hands of
the police or other agents of the State, that provision, read in
conjunction with the State's general duty under Article 1 of the
Convention to “secure to everyone within their jurisdiction the
rights and freedoms defined in ... [the] Convention”, requires
by implication that there should be an effective official
investigation. As with an investigation under Article 2, such
investigation should be capable of leading to the identification and
punishment of those responsible. Otherwise, the general legal
prohibition of torture and inhuman and degrading treatment and
punishment would, despite its fundamental importance, be ineffective
in practice and it would be possible in some cases for agents of the
State to abuse the rights of those within their control with virtual
impunity (see, among other authorities, Labita [GC], cited
above, § 131, and Boicenco v. Moldova, no. 41088/05,
§ 120, 11 July 2006).
The
investigation must also be effective in the sense that it is capable
of leading to a determination of whether the force used by the police
was or was not justified in the circumstances (see Kaya v. Turkey,
19 February 1998, § 87, Reports 1998-I). The
investigation into serious allegations of ill-treatment must be
thorough. That means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill-founded conclusions to close their investigation or as the basis
of their decisions (see the Assenov and Others judgment cited
above, §§ 103 et seq.). They must take all reasonable
steps available to them to secure the evidence concerning the
incident, including, inter alia, eyewitness testimony and
forensic evidence (see, Tanrıkulu v. Turkey [GC],
no. 23763/94, ECHR 1999-IV, § 104 et seq. and Gül
v. Turkey, no. 22676/93, § 89, 14 December 2000). Any
deficiency in the investigation which undermines its ability to
establish the cause of injuries or the identity of the persons
responsible will risk falling foul of this standard (see Boicenco,
cited above, § 123).
For an investigation to be effective, it may generally
be regarded as necessary for the persons responsible for and carrying
out the investigation to be independent from those implicated in the
events (see, for example, Barbu Anghelescu v. Romania, no.
46430/99, § 66, 5 October 2004). This means not only a lack of
hierarchical or institutional connection but also a practical
independence (see Boicenco, cited above, § 121).
As
regards the present case, the Court considers that the medical
evidence and the second applicant's complaints submitted to the
competent domestic authorities together raised at least a reasonable
suspicion that her injuries could have been caused by the use of
force by the police. That being so, her complaints constituted an
arguable claim and the Croatian authorities were thus under the
obligation to conduct an effective investigation.
It
appears in the instant case that the only investigation into the
applicant's allegations was carried out by the Ivanić Grad
Police, that is, by the very authorities to which the officers who
had allegedly inflicted injuries on the applicant belonged
organisationally and were subordinated hierarchically. Since the
officers conducting the investigation were subordinated to the same
chain of command as those officers subject to investigation, serious
doubts arise as to their ability to carry out an independent
investigation (see, mutatis mutandis, Oğur v. Turkey
[GC], no. 21594/93, § 91, ECHR 1999-III, and Matko,
cited above, § 89).
The
Court further observes that it was ultimately the State Attorney's
responsibility to ensure that an effective investigation was carried
out into the second applicant's complaints. After having been
informed about the applicant's allegation and her medical reports,
the State Attorney was under an obligation to ensure that the
preliminary investigation was carried out and that the necessary
evidence, such as the identification of the alleged perpetrators and
eyewitness evidence, was obtained. Furthermore, the State Attorney
was not bound by the legal characterisation of the alleged criminal
offence as provided in the applicant's criminal complaint, but was
obliged to initiate criminal prosecution and request investigative
measures if reasonable suspicion existed that the applicant had been
subjected to ill-treatment by the police.
In
the instant case, however, the State Attorney's conduct also lacked
the necessary transparency and appearance of independence (see,
mutatis mutandis, McKerr v. the
United Kingdom, no. 28883/95, § 131, ECHR
2001-III, and Hugh Jordan v. the United
Kingdom, no. 24746/94, § 123, ECHR 2001-III
(extracts)). In this regard the Court notes that the State Attorney
based his decision to dismiss the second applicant's criminal
complaint solely on the reports submitted by the police.
The
State Attorney did not undertake any independent steps, such as
interviewing the second applicant, the officers involved and the
eyewitnesses, ordering a forensic examination of the second
applicant's injuries, and so on (see, by contrast,
Berliński v. Poland, nos.
27715/95 and 30209/96, §§ 69 and 70, 20 June 2002).
There are no indications that he was prepared in any way
to scrutinise the police account of the incident.
As
regards the steps taken by the police, the Court notes that the
Government have not submitted any evidence that the police
interviewed the second applicant – the one complaining of
having been beaten by the police – or the police officers
allegedly implicated.
Furthermore,
the State Attorney based his conclusions on the evidence given by
M.Šk. and M.S. The former, however, was not present at the
scene and as regards the later, the accounts given by these two
witnesses as to his presence at the scene differ (see above §§
24 and 25).
The
Court notes that both M.S. and M.Šk. claimed that a large
group of Roma persons had been present at the scene. However,
although the Government claimed that they were interviewed by the
police, they have not submitted any evidence of these interviews.
The
Court considers that the deficiencies described above are sufficient
to conclude that the national authorities failed to carry out an
adequate and effective investigation into the circumstances
surrounding the alleged use of force by the police against the second
and third applicants.
The
Court finds that the shortcomings in the inquiry into the alleged
police violence regarding its effectiveness and the lack of
independence of the authorities involved were in breach of the
requirements of Article 3 of the Convention. There has accordingly
been a violation of the procedural obligation under Article 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE
CONVENTION IN CONNECTION WITH THE ALLEGATIONS OF ILL-TREATMENT
INFLICTED ON THE THIRD APPLICANT AT THE SCHOOL HE IS ATTENDING
Relying
on Articles 3 and 8 of the Convention, the applicants complained that
the school authorities had failed to protect the third applicant from
frequent beatings at school.
Admissibility
1. The parties' submissions
The
Government argued that the applicants had not exhausted domestic
remedies since they had not submitted a criminal complaint.
They
further argued that there was no positive obligation on the part of
the State in connection with the allegations of violence against the
third applicant at the school he was attending because the applicants
had never informed the relevant authorities of any incident of
violence. The only incident reported to the school authorities
concerned an accident on 21 October 2008. Both the school and
the police had established all relevant facts with respect to that
incident and concluded that it had been an accident and not
intentional act.
The
applicants argued that the third applicant was a minor and that it
was for the relevant authorities to establish the cause of his
injuries, even if he had remained passive. However, they had not done
this and his parents had informed the police and welfare centre about
the violence he suffered at school. Furthermore, the medical report
concerning the third applicant clearly showed that the school
authorities had been informed about the injuries he had sustained as
a result of violence by other pupils and that the school had ignored
them.
The
applicants argued that the medical documentation in respect of the
third applicant showed that he had sustained multiple head injuries
over a lengthy period of time and that he had been beaten on several
occasions. It had all resulted in serious eye damage. He had
frequently asked his teachers for painkillers. The doctor who had
examined him had informed the school authorities and asked for their
reaction. The applicants had informed the police, the welfare
services and the school authorities of frequent incidents of violence
by other pupils. In these circumstances the State had an obligation
to address these allegations and take adequate measures to protect
the third applicant from violence at school However, no action had
been taken.
2. The Court's assessment
The
Court considers that the nature of the complaint – lack of
adequate measures to protect the third applicant from violence by his
classmates and other pupils at the school he is attending –
does not necessarily demand criminal prosecution or imply anyone's
criminal responsibility. Therefore, there was no need for the
applicants to submit a criminal complaint.
(a) General principles
As
regards Article 3, further to the principles stated in paragraphs
78-80 above, the Court reiterates that, as regards the question
whether the State could be held responsible, under Article 3, for
ill-treatment inflicted on persons by non-state actors, the
obligation on the High Contracting Parties under Article 1 of the
Convention to secure to everyone within their jurisdiction the rights
and freedoms defined in the Convention, taken together with Article
3, requires States to take measures designed to ensure that
individuals within their jurisdiction are not subjected to torture or
inhuman or degrading treatment or punishment, including such
ill-treatment administered by private individuals (see, mutatis
mutandis, H.L.R. v. France, 29 April 1997, § 40,
Reports 1997-III). These measures should provide effective
protection, in particular, of children and other vulnerable persons,
and include reasonable steps to prevent ill-treatment of which the
authorities had or ought to have had knowledge (mutatis mutandis,
Osman v. the United Kingdom, 28 October 1998, Reports
1998-VIII, § 116, and E. and Others, cited above, §
88).
As
regards school discipline, the Court held as follows in its
above-cited judgment in Costello-Roberts v. the United Kingdom:
“27. The Court notes first that, as was pointed
out by the applicant, the State has an obligation to secure to
children their right to education under Article 2 of Protocol No. 1
(P1-2). It recalls that the provisions of the Convention and its
Protocols must be read as a whole (see the Kjeldsen, Busk Madsen and
Pedersen v. Denmark judgment of 7 December 1976, Series A no.
23, pp. 26 and 27, paras. 52 and 54, and the Soering v. the
United Kingdom judgment of 7 July 1989, Series A no. 161, p. 40,
para. 103). Functions relating to the internal administration of a
school, such as discipline, cannot be said to be merely ancillary to
the educational process (see, mutatis mutandis, the Campbell
and Cosans v. the United Kingdom judgment of 25 February 1982, Series
A no. 48, p. 14, para. 33). That a school's disciplinary system falls
within the ambit of the right to education has also been recognised,
more recently, in Article 28 of the United Nations Convention on the
Rights of the Child of 20 November 1989 which entered into force on 2
September 1990 and was ratified by the United Kingdom on 16 December
1991. This Article, in the context of the right of the child to
education, provides as follows:
'2. States Parties shall take all appropriate measures
to ensure that school discipline is administered in a manner
consistent with the child's human dignity and in conformity with the
present Convention.'
Secondly, in the United Kingdom, independent schools
co-exist with a system of public education. The fundamental right of
everyone to education is a right guaranteed equally to pupils in
State and independent schools, no distinction being made between the
two (see, mutatis mutandis, the above-mentioned Kjeldsen, Busk
Madsen and Pedersen judgment, Series A no. 23, p. 24, para. 50).
Thirdly, the Court agrees with the applicant that the
State cannot absolve itself from responsibility by delegating its
obligations to private bodies or individuals (see, mutatis
mutandis, the Van der Mussele v. Belgium judgment of 23 November
1983, Series A no. 70, pp. 14-15, paras. 28-30).
28. Accordingly, in the present case, which relates to
the particular domain of school discipline, the treatment complained
of although it was the act of a headmaster of an independent school,
is none the less such as may engage the responsibility of the United
Kingdom under the Convention if it proves to be incompatible with
Article 3 or Article 8 or both.”
The
Court considers that the same applies as regards issues of school
discipline in relations among pupils.
As
regards Article 8 of the Convention, the Court reiterates that there
is no doubt that the events giving rise to the present complaint
pertain to the sphere of private life within the meaning of Article 8
of the Convention. Indeed, the physical and moral integrity of an
individual is covered by the concept of private life. The concept of
private life extends also to the sphere of the relations of
individuals between themselves. There appears, furthermore, to be no
reason in principle why the notion of “private life”
should be taken to exclude attacks on one's physical integrity (see
X and
Y v. the Netherlands,
26 March 1985, § 23, Series A no.91).
While
the essential object of Article 8 is to protect the individual
against arbitrary interference by public authorities, it does not
merely compel the State to abstain from such interference: in
addition to this negative undertaking, there may be positive
obligations inherent in an effective respect for private or family
life. These obligations may involve the adoption of measures designed
to secure respect for private life even in the sphere of the
relations of individuals between themselves (see X and Y v. the
Netherlands, 26 March 1985, § 23, Series A no. 91;
Botta v. Italy, 24 February 1998, § 33, Reports
of Judgments and Decisions 1998 I; Mikulić,
cited above, § 57; and Sandra Janković
v. Croatia, no. 38478/05, § 44,
ECHR 2009 ... (extracts)).
107. 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 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,
cited above, §§ 22 and 23; Costello-Roberts
v. the United Kingdom, 25 March 1993, § 36, Series A
no. 247-C; D.P. and J.C. v. the United Kingdom,
no. 38719/97, § 118, 10 October 2002; M.C. v. Bulgaria,
no. 39272/98, §§ 150 and 152, ECHR 2003 XII;
Bevacqua
and S. v. Bulgaria,
no. 71127/01, § 65, 12 June 2008; and
Sandra Janković,
cited above, § 45).
(b) Application of these principles in the
present case
108. The
Court will therefore examine whether Croatia, in dealing with the
applicants' case, has been in breach of its positive obligations
under Articles 3 and 8 of the Convention.
The
Court considers that the third applicant, as a fifteen years old
minor at the time when the events in question took place, may be
considered to fall within the group of “vulnerable individuals”
entitled to State protection (see, A. v. the United Kingdom,
cited above, § 22).
The
Court notes that the applicants allege that the third applicant was
frequently ill-treated by other pupils at the school he attended.
They support these allegations with medical reports of 27 October
2008, 26 March and 15 December 2009 and 8 February and 17 March
2010 documenting the third applicant's complaints of beatings, belly
and back pain, headaches and permanent eye damage.
The
Court accepts that injuries such as permanent eye damage caused by
blows to the head are of a serious nature and might call for the
application of both Articles 3 and 8 of the Convention.
However,
the Court also notes that in their submissions to the national
authorities, as well as in their submissions before it, the
applicants complained about the ill-treatment of the third applicant
at school only in vague and general terms. They never indicated the
exact dates or circumstances or any other details of specific
incidents of the alleged ill-treatment.
The
school authorities examined the allegations concerning the incident
of 21 October 2008 and established that it had been an accident:
pupil L.R. had swung his head back and accidentally hit the third
applicant, who was standing behind him, on the nose. In order to
trigger the State's positive obligations under Articles 3 and 8 of
the Convention, however, the State authorities would have to have
been aware of the risk of violence. It is clear that such is not the
case in the event of accidental injuries.
As
regards the injuries described in the medical documentation, the
Court notes that the medical report of 27 October 2008 mentions an
injury to the third applicant's nose and refers to the incident of 21
October 2008 when he was accidentally hit by another pupil. The
medical report of 26 March 2009 does not indicate any visible
injuries and the ultrasound examination did not detect any injuries.
The medical report of 15 December 2009 indicates that on several
occasions the third applicant had sustained blows to his head, in
school and out of school. But no injuries were found.
On
the other hand, permanent eye damage is a serious injury that was
clearly established. However, the Court also notes that the third
applicant alleged that he had been hit with an iron bar by unknown
aggressors outside the school. The medical documentation of 8
February and 17 March 2010 does not indicate the cause of the third
applicant's eye damage or whether it is connected with a specific
incident of violence at school. Nor did the applicants refer to a
particular incident of violence at school which could have been the
cause of that injury.
Other
than the incident of 21 October 2008, there are no actual details of
the alleged incidents of violence against the third applicant. While
there is a mention of insults by other pupils because of his Roma
origin, the applicants never specified the nature of those insults or
their origin. It is safe to assume that the third applicant would
have known the names of the pupils who were allegedly insulting him
since they were his classmates or at least attended the same school.
Furthermore,
both the school headmaster and the pedagogue explained in their
reports that when there were allegations of verbal insults, the
pupils concerned had been warned and the school authorities had
discussed the issue with the parents at parent-teacher meetings. In
the absence of more specific allegations concerning the incidents of
verbal violence the Court cannot hold the State responsible for the
lack of an adequate response.
While
well aware of the seriousness of the problem of violence among
pupils, in the circumstances of the present case the Court cannot see
how the applicants' allegations could trigger the State's positive
obligations under Articles 3 and 8 of the Convention and require the
relevant authorities to take concrete steps. For such an obligation
to be triggered, allegations of violence must be specific and more
detailed as to the place, time and nature of the acts complained of.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3(a)
and 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
In
respect of non-pecuniary damage the first applicant claimed 5,000
euros (EUR), the second applicant EUR 20,000, and the third applicant
EUR 30,000.
The
Government deemed the sums claimed unsubstantiated and excessive.
The
Court rejects any claim for non-pecuniary damage in respect of the
first applicant since the application in respect of him has been
declared inadmissible.
As
regards the second and third applicants, the Court has found a
violation of the procedural aspect of Article 3 in connection with
the alleged police violence on 16 June 2009. The Court accepts that
owing to the lack of an adequate investigation into the allegations
of police brutality the second and third applicants suffered
non-pecuniary damage. Making its assessment on an equitable basis,
the Court awards the second and the third applicants jointly EUR
6,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable on this amount.
B. Costs and expenses
The
applicants also claimed EUR 2,240 for the costs and expenses incurred
before the Court.
The
Government deemed the sum claimed excessive.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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 documents in its possession and the above criteria, the Court
considers it reasonable to award EUR 1,000, plus any tax that may be
chargeable to the applicants on this amount.
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 concerning the alleged
ill-treatment of the second and third applicants by the police
officers on 16 June 2009 at about 10.30 p.m. admissible and the
remainder of the application inadmissible;
Holds that there has been no violation of the
substantive aspect of Article 3 of the Convention in respect of
the event of 16 June 2009 at about 10.30 p.m.;
Holds that there has been a violation of the
procedural aspect of Article 3 of the Convention in respect of the
lack of a proper investigation into the event of 16 June 2009 at
about 10.30 p.m.;
Holds
(a) that
the respondent State is to pay to the second and third 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, to be converted into
Croatian kunas at the rate applicable at the date of settlement:
(i) EUR
6,000 (six thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to the second and third applicants;
(ii) EUR
1,000 (thousand euros), plus any tax that may be chargeable to the
second and third applicants, 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 19 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly
Kovler
Registrar President
