FIRST SECTION
Application no. 74448/12
Ćamilj BLJAKAJ and others
against Croatia
lodged on 27 October 2012
STATEMENT OF FACTS
The first applicant, Mr Ćamilj Bljakaj, is a Croatian national who was born in 1948 and lives in Slatina; the second applicant, Mr Saša Bljakaj, is a Croatian national who was born in 1976 and lives in Slatina; the third applicant Ms Emina Bljakaj Vulić, is a Croatian national who was born in 1980 and lives in Slatina; the fourth applicant Ms Katarina Knapić, is a Croatian national who was born in 1956 and lives in Osijek; and the fifth applicant Ms Ružica Novački, is a Croatian national who was born in 1949 and lives in Josipovac. The applicants are represented before the Court by Mr V. Gredelj, a lawyer practicing in Bjelovar.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant is husband, the second and third applicants are children, and the fourth and fifth applicants are sisters of deceased M.B.B., an attorney-at-law who was shot dead by certain A.N. in her office. A.N. was husband of a M.B.B.’s client, M.N.
On 21 March 2002 M.N. informed the Slatina Police Station (Policijska postaja Slatina; hereinafter: “the police”) that she had problems with her husband A.N. who had already had a record of alcohol abuse and violent behaviour.
Acting on M.N.’s complaint the police interviewed A.N. and M.N. but never recorded the interview or took any other actions.
In the morning of 22 March 2002, at around 7.00 a.m., A.N. came to a local bank in Slatina. He withdrew all his deposit and said to a bank employee, whom he had known from before, that they would not see each other again. While speaking to the bank employee, A.N. was in tears.
The bank employees informed the police and medical emergency service of his behaviour. Two police officers came to the scene and interviewed the bank employees. When they returned to the police station, their superior ordered them to interview the applicant. Another police officer was ordered to immediately inform the social and health services but he failed to do so and informed them only at around 9.40 a.m.
When the police came to A.N.’s address he told them that he would commit a suicide. They recorded his statement and returned to the police station without taking any other measures. Later the same day, at around 9.30 a.m., A.N. came to the workplace of his wife M.N. and shot her in head, stomach and arm. He then went to M.B.B.’s office and shot her dead. After the killings he returned to his address where he exchanged fire with the police officers who came to arrest him by throwing bombs and shooting at them. It appears that eventually, during the same day, he killed himself.
On 22 March 2005 the first, second and third applicants, and the mother of the deceased M.B.B. (who died on 14 June 2010, and the fourth and fifth applicants were declared her successors) lodged a civil action against the State in the Slatina Municipal Court (Općinski sud u Slatini) seeking damages for the failure of the authorities to protect the right to life of their relative. They based their civil action on section 13 of the State Administration Act which provided that the State shall compensate damage caused to a citizen, legal entity or other party by unlawful or wrongful conduct of a State administration body.
During the proceedings the trial court questioned the police officers and other witnesses. It also heard evidence from M.N. who testified that A.N. had previously had a rifle, handgun and a bomb which were, at some point, taken from him by the police. He also used to say that he was saving money to buy a handgun and to kill her and two other persons, but she never knew exactly whom.
In the meantime, the police officer who failed to report the incident of 21 March 2002 and the police officer who failed to inform the health and social services in time on 22 March 2002 were convicted in the disciplinary proceedings. Both police officers were fined.
On 22 April 2008 the Slatina Municipal Court dismissed the civil action as ill-founded on the grounds that there was no causal connection between the acts and omissions of the State authorities and the applicants’ relative’s death.
Against the above judgment the applicants lodged an appeal with the Virovitica County Court (Županijski sud u Virovitici) arguing that the state authorities had failed to prevent the killing of their relative and that under the relevant domestic law they should have been granted damages.
On 7 May 2009 the Virovitica County Court dismissed the applicants’ appeal as ill-founded endorsing the reasoning of the first-instance court.
The applicants then lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) on 29 June 2009 and on 11 May 2011 the Supreme Court dismissed it as ill-founded.
On 5 January 2012 the applicants lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) arguing that there was a direct link between the omissions of the State authorities and the death of their relative. They therefore considered that the lower courts erroneously dismissed their civil action for damages.
On 15 March 2012 the Constitutional Court dismissed the applicants’ constitutional complaint as ill-founded, endorsing the reasoning of the lower courts.
The decision of the Constitutional Court was served on the applicants’ representative on 27 April 2012.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku – Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003, 178/2004 and 115/2006) provide as follows:
8. General Provisions on Detention
Article 101
“(1) Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure.
(2) The detention order shall be lifted and the detainee released as soon as the grounds for detention cease to exist.
(3) When deciding on detention, in particular its duration, the court shall take into consideration the proportionality between the gravity of the offence, the sentence which ... may be expected to be imposed, and the need to order and determine the duration of detention.
(4) The judicial authorities conducting the criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review of their own motion whether the grounds and legal conditions for detention have ceased to exist, in which case the detention order shall immediately be lifted.”
9. Grounds for Ordering Detention
Article 102
“(1) Where a reasonable suspicion exists that a person has committed a criminal offence, he or she may be placed in detention if:
...
(3) special circumstances justify the fear that the person concerned will ... commit the criminal offence he or she is threatening to commit.”
The relevant provision of the Protection of Individuals with Mental Disorder Act (Zakon o zaštiti osoba s duševnim smetnjama, Official Gazette, nos. 11/1997, 27/1998, 128/1999, 79/2002) provides:
Section 24
“When there is a reasonable suspicion that an individual poses an immediate threat to his life or health, or life or health of others, in particularly urgent cases the officials of the Ministry of the Interior may bring such individual to the psychiatric institution, nearest to his place of residence or the place of his apprehension, even without the previous medical examination under section 23 § 1 of this Act.”
The relevant provision of the State Administration Act (Zakon o sustavu državne uprave, Official Gazette nos. 75/1993, 92/1996, 48/1999, 15/2000, 127/2000 and 59/2001) provided:
Section 13
“The Republic of Croatia shall compensate damage caused to a citizen, legal entity or other party by unlawful or wrongful conduct of a State administration body, a body of local self-government and administration ...”
COMPLAINTS
The applicants complain that the domestic authorities failed to protect their relative’s right to life and that they were unable to obtain any damages in that respect.
QUESTIONS TO THE PARTIES
1. Has the applicants’ relative’s right to life, ensured by Article 2 of the Convention, been violated in the present case?
In particular, did the domestic authorities comply with their positive obligation to take all necessary steps to protect her right to life, as required by Article 2 of the Convention?
2. Did the applicants have at their disposal an effective domestic remedy for their Convention complaints, as required by Article 13 of the Convention?
The Government are requested to submit two copies of the entire case file from the domestic proceedings.
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