Постановление ЕСПЧ от 14.10.2010 «Дело «А (A) против Хорватии» (жалоба N 55164/08) [рус., англ.] Часть 5

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THE LAW

  1. Alleged violation of Articles 2, 3 and 8 of the Convention

 

  1. The applicant complained that by failing to afford her adequate protection against B’s violence the State authorities had failed to comply with their positive obligations. She relied on Articles 2, 3 and 8 of the Convention, the relevant parts of which read:

Article 2 — Right to life

«1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

…»

Article 3 — Prohibition of torture

«No one shall be subjected to torture or to inhuman or degrading treatment or punishment.»

Article 8 — Right to respect for private and family life

«1. Everyone has the right to respect for his private and family life, his home and his correspondence.

  1. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.»

 

  1. Admissibility

 

  1. The Court notes that this part of the application 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.

 

  1. Merits
  1. The parties’ submissions

 

  1. The applicant argued that the State authorities had failed in their positive obligations under Articles 2, 3 and 8 of the Convention in respect of the acts of violence committed against her by B. She maintained that although the national courts, in both criminal and minor offences proceedings, had imposed certain sanctions and ordered certain measures, most of these had not been enforced, thereby seriously undermining any meaningful purpose of those proceedings. The national courts had also misapplied the relevant provisions of the applicable substantive and procedural law.
  2. She also argued that the requirement for her to prove an immediate risk to her life in order to have a protective measure of prohibition on harassing and stalking a victim of violence applied put a disproportionate burden on her as the victim of violent acts (see paragraph 35 above). In any event the Z. Minor Offences Court had had sufficient proof of a risk to her life because at that time B had already been convicted of uttering death threats against her (see paragraph 20 above).
  3. The applicant further maintained that owing to the failure of the national authorities to provide her with adequate protection against B’s violence she had to live in fear for her physical integrity and for her life, had had to hide in the shelter, together with C, and had also had to move to a secret address.
  4. The Government argued that in Croatia the protection of victims of domestic violence was ensured through the mechanisms of criminal law, and in particular the Protection against Domestic Violence Act. In the present case the relevant authorities had reacted to the incidents of violence against the applicant by B, had instituted several sets of both criminal and minor offences proceedings and had applied such criminal sanctions and protective measures against B as they had considered proper and suitable in the circumstances. The Government submitted that the prison term imposed on B for not paying in full the fine imposed in the decision of the Z. Minor Offences Court of 2 October 2006 had not been enforced because Z. Prison had been full to capacity. Likewise, the measure of compulsory psycho-social treatment imposed on B in the same decision had not been implemented owing to the lack of licensed individuals or agencies able to execute such a protective measure (see paragraphs 31 and 34 above).
  5. In addition, the Government had adopted two national strategies for protection against domestic violence (the first one covering the period between 2005 and 2007 and the second covering the period between 2008 and 2010) which included, inter alia, the education of all those involved in cases of domestic violence and cooperation with the non-governmental organisations working in that field as well as financial and other support for them. Thus, in 2008 only sixteen new shelters with a total of 329 places for the victims of violence had been established, of which six were State-funded.

 

  1. The Court’s assessment

 

  1. The Court takes note of B’s repeated violent behaviour towards the applicant. The facts in issue concern frequent episodes of violence in the period between November 2003 and June 2006, amounting to some two years and seven months. The violence was both verbal, including serious death threats, and physical, including hitting and kicking the applicant in the head, face and body, causing her injuries. In view of the fact that all the incidents of domestic violence in the present case concerned the same perpetrator and occurred in a continual manner, the Court will examine them as a continuous situation.
  2. The Court takes further note of the psychiatric reports concerning B which indicated that he suffered from several mental disorders, including a severe form of PTSD, emphasised his tendency towards violence and his reduced ability to control his impulses, and reiterated the recommendation for continuing compulsory psychiatric treatment (see paragraphs 6, 12 and 13 above).
  3. The above facts show that the applicant made credible assertions that over a prolonged period of time B presented a threat to her physical integrity and had actually attacked her on a number of occasions. In view of these facts, the Court considers that the State authorities had a positive obligation to protect the applicant from the violent behaviour of her (former) husband. This obligation might arise under all three Articles of the Convention relied upon, namely Articles 2, 3 and 8. However, in order to avoid further analysis as to whether the death threats against the applicant engaged the State’s positive obligation under Article 2 of the Convention, as well as issues pertinent to the threshold for the purposes of Article 3 of the Convention, the Court will analyse the circumstances of the present case from the standpoint of Article 8 of the Convention.
  4. In this connection the Court reiterates that there is no doubt that the events giving raise to the present application 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).
  5. While the essential object of Article 8 is to protect the individual against arbitrary action by the 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 (see, mutatis mutandis, X and Y, cited above, §§ 23 — 24; v. Croatia, no. 53176/99, § 57, ECHR 2002-I; and Sandra v. Croatia, no. 38478/05, § 44, ECHR 2009-… (extracts)).
  6. 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 , cited above, § 45).
  7. The Court will therefore examine whether Croatia, in dealing with the applicant’s case, has been in breach of its positive obligations under Article 8 of the Convention (see, mutatis mutandis, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24).

(a) Measures ordered and implemented

(i) Detention

  1. As to the measures taken against B by the Croatian authorities, the Court notes that one of the measures applied against B was his pre-trial detention. Thus, in the criminal proceedings on charges of violent behaviour within the family, instituted on 21 November 2005 (see §§ 7 — 17 above), B was detained from 21 November to 20 December 2005. These proceedings concerned the allegations of physical and verbal violence against the applicant in the period between November 2003 and August 2005 as well as the allegations of child molestation. They are still pending.
  2. In the proceedings concerning the charges of making death threats against the applicant and a policewoman, instituted on 1 March 2006 (see §§ 18 — 22 above), B was detained from 30 June to 24 October 2006.

(ii) Other protective measures

  1. Further to B’s detention, the national courts applied some other measures against him. Thus, in the last-mentioned proceedings concerning death threats against the applicant and a policewoman, the Zagreb Municipal Court also issued a restraining order against B, prohibiting access to the applicant at a distance of less than three hundred metres and prohibiting contact with the applicant.
  2. In the minor offences proceedings on charges of domestic violence, instituted on 26 March 2006, the Zagreb Minor Offences Court ordered a protective measure prohibiting access to the applicant at a distance of less than one hundred metres for a period of one year (see §§ 29 — 35 above).

(b) Measures recommended or ordered and not followed or complied with

  1. However, the Court notes that some further recommendations and measures were not followed or complied with. It must be stated at this juncture that it is not the Court’s task to verify whether the domestic courts correctly applied domestic criminal law; what is in issue in the present proceedings is not individual criminal-law liability, but the State’s responsibility under the Convention. The Court must grant substantial deference to the national courts in the choice of appropriate measures, while also maintaining a certain power of review and the power to intervene in cases of manifest disproportion between the gravity of the act and the results obtained at domestic level (see, mutatis mutandis, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 62, 20 December 2007; Atalay v. Turkey, no. 1249/03, § 40, 18 September 2008; and v. Croatia, no. 46423/06, § 78, ECHR 2009-…).
  2. In this connection the Court notes that the obligation on the State under Article 8 of the Convention in cases involving acts of violence against an applicant would usually require the State to adopt adequate positive measures in the sphere of criminal-law protection. The Court stresses that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see, mutatis mutandis, Selmouni v. France, [GC], no. 25803/94, § 101, ECHR 1999-V; Mayeka and Mitunga v. Belgium, no. 13178/03, § 48, ECHR 2006-XI; and Sandra , cited above, § 47). Bringing to justice perpetrators of violent acts serves mainly to ensure that such acts do not remain ignored by the relevant authorities and to provide effective protection against them.

(i) Detention

  1. In the criminal proceedings instituted on 1 March 2006 the Zagreb Municipal Court, in a judgment of 16 October 2006, found B guilty on two counts of making death threats, against the applicant and against a policewoman, and sentenced him to eight months’ imprisonment. B has not yet started to serve that prison term.
  2. In one of the sets of minor offences proceedings on charges of domestic violence a decision was adopted on 2 October 2006 ordering the applicant to pay a fine in the amount of HRK 6,000. He paid only HRK 1,000 and the remaining HRK 5,000 was supplemented by a prison term, but B never served his prison sentence. The Government explained that this was because Z. Prison was full to capacity.
  3. Instead he was arrested as late as 4 September 2009 in a separate set of criminal proceedings concerning charges of death threats against a judge and her daughter, and was placed in pre-trial detention. In these proceedings a judgment sentencing B to three years’ imprisonment was adopted on 19 October 2009.

(ii) Psychiatric treatment

  1. At the same time an order was made for B to undergo psychiatric treatment. While the Court agrees that this measure was desirable, it cannot but note that it was not applied in connection with any proceedings concerning B’s violence against the applicant. Furthermore, it was applied several years after the applicant had reported frequent incidents involving verbal and physical violence and death threats by B. The Court also notes that the Government have provided no information as to whether an individual programme for the execution of B’s prison term was designed by the prison governor as required under section 69 of the Enforcement of Prison Sentences Act. An individual programme of this kind in respect of B takes on additional importance in view of the fact that his prison term was combined with a measure as significant as compulsory psychiatric treatment ordered by the domestic courts in relation to the serious death threats he had made (see, by way of comparison, Branko and Others v. Croatia, no. 46598/06, § 56, ECHR 2009-…).
  2. In this connection the Court notes that as early as December 2004 a psychiatrist who examined B found that he suffered from chronic PTSD, with symptoms that included lowered tolerance of frustration, latent aggressiveness, a worsening of his condition and impaired social functioning, in particular in family life. In another psychiatric report, dated January 2008, it was found that B was in need of continuing psychiatric control and supervision and that a regular programme of therapy would preserve his relatively stable mental condition and hence diminish the likelihood of his repeating the criminal offences and, in practical terms, remove the risk to his environment.
  3. In one set of minor offences proceedings on charges of domestic violence, a decision of 2 October 2006 ordered that the applicant should undergo psycho-social treatment in order to address his mental health problems in connection with his violent behaviour (see paragraph 31 above). However, owing to the lack of licensed individuals or agencies able to execute such a protective measure, it was never enforced (see §§ 31 — 33 above).

(iii) Fines

  1. The Court notes that the Government have not submitted any information showing that the fine of HRK 2,000 which B was ordered to pay in the minor offences proceedings on 20 November 2006 has been enforced. Further to that, in another set of minor offences proceedings, he was ordered to pay a fine in the amount of HRK 7,000 on 19 July 2007. However, the national courts allowed these proceedings to become time-barred when they were pending before the appeal court.

(c) Conclusion

  1. The Court stresses that its task is not to take the place of the competent Croatian authorities in determining the most appropriate methods of 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 (see Sandra , cited above, § 46).
  2. In line with the principle stated above, the Court is also aware that it is for the national authorities to organise their legal systems so as to comply with their positive obligations under the Convention, and in that respect it is of course possible to conduct separate sets of criminal proceedings against the same defendant in respect of different criminal offences involving the same victim. However, in a situation such as the one in the present case, where different sets of criminal and minor offences proceedings concerned a series of violent acts by the same person, namely B, and against the same victim, namely the applicant, it appears that the requirement of effective protection of the applicant’s right to respect for her private life would have been better satisfied had the authorities been in a position to view the situation as a whole. That would have given them a better overview of the situation and an opportunity of addressing the need to protect the applicant from various forms of violence in the most appropriate and timely manner.
  3. The Court recognises that the national courts instituted several sets of minor offences and criminal proceedings against B, in the context of which they ordered certain measures such as periods of pre-trial detention, psychiatric or psycho-social treatment, restraining and similar orders and even a prison term. By ordering these measures the Croatian authorities showed that they considered them adequate and necessary in order to address the situation of violence against the applicant. The Court cannot but agree with that approach.
  4. The national courts never overturned the measures in question or held that they were no longer necessary. However, as explained above in detail, many of these measures, such as periods of detention, fines, psycho-social treatment and even a prison term, have not been enforced (see paragraphs 68 — 74 above) and the recommendations for continuing psychiatric treatment, made quite early on, were complied with as late as 19 October 2009 and then in the context of criminal proceedings unrelated to the violence against the applicant. In addition, it is not certain that B has as yet undergone any psychiatric treatment (see paragraph 23 above). The Court stresses that the main purpose of imposing criminal sanctions is to restrain and deter the offender from causing further harm. However, these aims can hardly be achieved without the sanctions imposed being enforced.
  5. The national authorities failed to implement measures ordered by the national courts, aimed on the one hand at addressing B’s psychiatric condition, which appear to have been at the root of his violent behaviour, and on the other hand at providing the applicant with protection against further violence by B. They thus left the applicant for a prolonged period in a position in which they failed to satisfy their positive obligations to ensure her right to respect for her private life.
  6. There has accordingly been a violation of Article 8 of the Convention. In view of that finding, the Court considers that no separate issue remains to be examined under Articles 2 and 3 of the Convention.

 

  1. Alleged violation of Article 6 of the Convention

 

  1. The applicant further complained of the unfairness of the criminal and minor offences proceedings instituted against B. She relied on Article 6 § 1 of the Convention, the relevant part of which provides:

«In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a… hearing within a reasonable time by [a]… tribunal…»

  1. The Court notes that the applicant cannot rely on Article 6 of the Convention in so far as her complaint relates to criminal proceedings against third persons. Furthermore, the complaints made by the applicant have been examined above in connection with the complaint under Article 8 of the Convention.
  2. It follows that this complaint 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.

 

III. Alleged violation of Article 13 of the Convention

 

  1. The applicant alleged that she had no effective remedy in respect of her complaint under the Convention. She relied on Article 13 of the Convention, which provides:

«Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.»

  1. The Government contested that argument.
  2. The Court notes that this complaint is linked to the one examined above under Article 8 of the Convention and must therefore likewise be declared admissible.
  3. The applicant argued that because of the failure of the national authorities to enforce their own decisions adopted in various proceedings instituted against B on charges of verbal and physical violence against her, she had no effective remedy by which to obtain protection against B’s violence. The Court notes that these very same issues have already been examined above under Article 8 of the Convention and have led to a finding of a violation of that Article. Therefore, the Court considers that in the specific circumstances of the present case it is not necessary to examine whether, in this case, there has been a violation of Article 13 of the Convention.

 

  1. Alleged violation of Article 14 of the Convention

 

  1. The applicant further complained that the relevant laws relating to domestic violence were insufficient and ineffective and that since acts of domestic violence were predominantly committed against women, those laws were also discriminatory. She relied on Article 14 of the Convention, which provides:

«The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.»

 

  1. The parties’ submissions

 

  1. The applicant concentrated her arguments concerning the alleged violation of Article 14 on three main points. Firstly, she argued that the legislation pertinent to the incidents of domestic violence was discriminatory in that it provided for minor offences proceedings in respect of all acts of domestic violence, including instances of serious physical abuse, while such violence occurring outside a domestic context was dealt with through ordinary criminal-law mechanisms. Furthermore, although a measure of compulsory psychiatric treatment was provided for by law, in practice it had been entirely ineffective.
  2. Secondly, she argued that although the Government had adopted two national strategies for protection against domestic violence (in 2005 and 2008) neither had been implemented. In that connection she stressed that the training of experts working in the context of domestic violence was insufficient and that there had been no evaluation of such training.
  3. Thirdly, the applicant maintained that the statistics relating to the application of protective measures under the Protection against Domestic Violence Act showed that in 2007, in the City of Zagreb, 173 cases concerning domestic violence had been processed under that Act. In 98 of these cases a request had been made for the application of protective measures; such measures had actually been applied in only eleven cases, while in 40 cases they had been refused and in 47 cases a judge had made no comments on the request for a protective measure. The applicant submitted further official statistics showing that out of 172 sets of minor offences proceedings conducted in 2007, 132 had ended by finding both (former) spouses guilty. Of these, 70 cases had resulted in a sentence of imprisonment, 38 of which had been suspended. In the remaining 16 cases in which only one (former) spouse was found guilty, men had been the perpetrators in 14 cases and women in 2, while the other cases had been terminated without a conviction.
  4. Separate statistics were submitted regarding the length of proceedings instituted under the Protection against Domestic Violence Act before the High Minor Offences Court, which is an appeal court in minor offences cases. In 2007 that court received 1,568 cases under the said Act. In 461 cases the proceedings had lasted thirty days, in 574 cases between 31 and 60 days, in 420 cases they had lasted between 61 and 120 days and in 67 cases more than 121 days.
  5. The Government argued that there had been no discriminatory treatment of the applicant by any of the authorities involved. Unlike in the Opuz case (see Opuz v. Turkey, no. 33401/02, ECHR 2009-…), the facts of the present case showed that none of the authorities had treated the incidents of violence against the applicant as a family matter they could not interfere with. Furthermore, none of the officials had in any manner tried to dissuade the applicant from pursuing her claims against B.

 

  1. The Court’s assessment

 

  1. The Court has already accepted that a general policy or measure which is apparently neutral but has disproportionately prejudicial effects on persons or groups of persons who, as for instance in the present case, are identifiable only on the basis of gender, may be considered discriminatory notwithstanding that it is not specifically aimed at that group (see, mutatis mutandis, Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001; Hoogendijk v. the Netherlands (dec.), no. 58461/00, 6 January 2005; and and Others v. Croatia [GC], no. 15766/03, § 150, ECHR 2010-…), unless that measure is objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate. Furthermore, discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006-VIII). Where an applicant produces prima facie evidence that the effect of a measure or practice is discriminatory, the burden of proof will shift on to the respondent State, to whom it falls to show that the difference in treatment is not discriminatory (see and Others, cited above, § 150).
  2. The Court notes that in Opuz, on the basis of reports submitted by the applicants and prepared by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Committee, the Bar Association and Amnesty International, it found that general and discriminatory judicial passivity in Turkey, albeit unintentional, had mainly affected women, and considered that the violence suffered by the applicant and her mother could be regarded as gender-based violence which was a form of discrimination against women. Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the judicial system and the impunity enjoyed by the aggressors, as found in that case, indicated that there had been insufficient commitment to take appropriate action to address domestic violence (see Opuz, cited above, § 200).
  3. In support of these findings the Court relied on the Turkish Government’s recognition of the general attitude of the local authorities, such as the manner in which the women were treated at police stations when they reported domestic violence, and judicial passivity in providing effective protection to victims (see Opuz, cited above, § 192). Furthermore, the reports submitted indicated that when victims reported domestic violence to police stations, police officers did not investigate their complaints but sought to assume the role of mediator by trying to convince the victims to return home and drop their complaint. In this connection, police officers considered the problem as a family matter with which they could not interfere (see Opuz, cited above, §§ 92, 96, 102 and 195). The reports also showed that there were unreasonable delays in issuing injunctions and in serving injunctions on the aggressors, given the negative attitude of the police officers. Moreover, the perpetrators of domestic violence did not seem to receive dissuasive punishments, because the courts mitigated sentences on the grounds of custom, tradition or honour (see Opuz, cited above, §§ 91 — 93, 95, 101, 103, 106 and 196).
  4. The Court notes at the outset that in the present case the applicant has not submitted any reports in respect of Croatia of the kind concerning Turkey in the Opuz case. There is not sufficient statistical or other information disclosing an appearance of discriminatory treatment of women who are victims of domestic violence on the part of the Croatian authorities such as the police, law-enforcement or health-care personnel, social services, prosecutors or judges of the courts of law. The applicant did not allege that any of the officials involved in the cases concerning the acts of violence against her had tried to dissuade her from pursuing the prosecution of B or giving evidence in the proceedings instituted against him, or that they had tried in any other manner to hamper her efforts to seek protection against B’s violence.
  5. Starting from the arguments submitted by the applicant (see paragraphs 89 — 92 above), the Court will proceed to examine whether they disclose prima facie evidence of discrimination on the basis of gender.
  6. As regards the applicant’s arguments related to the legislative provisions covering the incidents of domestic violence, the Court stresses that it is for legislators and politicians to deal with the issues pertinent to devising general criminal policy, including the prevention of crime, in a given legal system (see Branko and Others, cited above, § 73). The Court’s task is to review under the Convention the decisions that those authorities have taken.
  7. The Court notes that, in Croatia, incidents of domestic violence may be addressed both in minor offences proceedings and in ordinary criminal proceedings. In the Court’s view, the fact that certain acts of domestic violence may be the subject of minor offences proceedings does not in itself appear discriminatory on the basis of gender. In this connection the Court notes that various types of sanctions and measures may be applied in those proceedings, such as fines of up to HRK 10,000, a prison term of up to sixty days and the preventive measures listed in sections 7 — 10 of the Protection against Domestic Violence Act (see paragraph 42 above). In addition to that the criminal offence of violent behaviour within the family under Article 215a of the Criminal Code is punishable by a prison term ranging from six months to five years. In the Court’s view the legislative framework in question does not show any appearance of discrimination on the basis of gender. Thus, in the present case several sets of both minor offences and criminal proceedings were instituted against B.
  8. The Court has already established that not all the sanctions and measures ordered or recommended in the context of these proceedings were complied with. While this failure appears problematic from the standpoint of Article 8 of the Convention, it does not in itself disclose an appearance of discrimination or discriminatory intent on the basis of gender in respect of the applicant.
  9. As regards the national strategies for protection against domestic violence adopted in 2008 and 2010, the Court notes that the applicant’s allegation that the training of relevant experts had been insufficient is unsupported by any relevant examples, data or reports and cannot in itself lead to a conclusion of gender discrimination in the treatment of incidents of domestic violence in Croatia.
  10. As regards the statistics concerning the implementation of protective measures, the information submitted is again incomplete and unsupported by relevant analysis and thus not capable of leading the Court to draw any conclusions on that basis. As regards the other statistics submitted, the only worrisome data is that out of 173 sets of minor offences proceedings conducted in 2007 in connection with incidents of domestic violence, in 132 sets of proceedings both spouses were found guilty. However, no such findings were made in the cases concerning the applicant.
  11. Against the background described above, the Court finds that the applicant has not produced sufficient prima facie evidence that the measures or practices adopted in Croatia in the context of domestic violence, or the effects of such measures or practices, are discriminatory. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

 

  1. Application of Article 41 of the Convention

 

  1. 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.»

 

  1. Damage

 

  1. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.
  2. The Government deemed the amount claimed excessive and unsubstantiated.
  3. Having regard to all the circumstances of the present case, the Court accepts that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 9,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to her.

 

  1. Costs and expenses

 

  1. The applicant also claimed HRK 8,659.30 for the costs and expenses incurred before the Constitutional Court and HRK 23,515.60 for those incurred before the Court.
  2. The Government submitted that the applicant was not entitled to any costs and expenses before the national courts.
  3. 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 were 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 accepts that the applicant’s constitutional complaint was aimed at remedying the situation of violation claimed by the applicant in the present case. It therefore awards the claim for costs and expenses in the domestic proceedings in the amount of EUR 1,200 and considers it reasonable to award the sum of EUR 3,270 for the proceedings before the Court, plus any tax that may be chargeable to her on those amounts.

 

  1. Default interest

 

  1. 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

 

  1. Declares the complaints submitted under Articles 2, 3, 8 and 13 of the Convention admissible and the remainder of the application inadmissible;
  2. Holds that there has been a violation of Article 8 of the Convention;
  3. Holds that there is no need to examine the complaints under Articles 2, 3 and 13 of the Convention;
  4. Holds

(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, which are to be converted into Croatian kuna at the rate applicable on the date of settlement:

(i) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,470 (four thousand four hundred and seventy 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;

  1. Dismisses the remainder of the applicant’s claim for just satisfaction.

 

Done in English, and notified in writing on 14 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Christos ROZAKIS President

 WAMPACH Deputy Registrar

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