B.V. AND OTHERS v. CROATIA

SECOND SECTION

DECISION

Application no. 38435/13
B.V. and Others
against Croatia

The European Court of Human Rights (Second Section), sitting on 15 December 2015 as a Chamber composed of:

Işıl Karakaş, President,
Julia Laffranque,
Nebojša Vučinić,
Paul Lemmens,
Ksenija Turković,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having regard to the above application lodged on 14 May 2013,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants are Croatian nationals who were born in 1936, 1958, 1967 and 2003 respectively and live in Z. The President of the First Section, to which the case was initially allocated, decided that the applicants’ identities should not be disclosed to the public (Rule 47 § 4). They were represented by Ms I. Bojić, a lawyer practising in Zagreb.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background to the case

4. The first applicant is the mother of the second and third applicants. The third applicant is the mother of the fourth applicant. They all live in the same household in a flat located on the first floor of a residential building in Z.

5. Since 2003 the applicants have had various conflicts with their neighbours, Mr M.P. and Ms B.P., who live in a flat on the ground floor of the same residential building. Occasionally, they have also had conflicts with their other two neighbours, Mr D.P. and Ms S.P.

6. It follows from a report of the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske) available to the Court, that in the period between 2003 and 2013 there were in total ninety-one police interventions concerning various conflicts between the applicants and their neighbours.

7. Some of these incidents resulted in the criminal proceedings examined further below (see paragraphs 86-129 below).

8. The majority of the incidents resulted only in the police issuing a verbal caution or in minor offences proceedings. This in particular relates to the police interventions in connection with the following events.

9. On 12 May 2003 the police intervened because the first applicant was disturbed by M.P. and B.P. smoking on their balcony.

10. On 15 June 2003 the intervention of the police was requested in relation to an altercation between the second applicant and B.P. In particular, they exchanged a series of insults in the course of which B.P. also made reference to the second applicant’s Serbian ethnic origin and threw a piece of wood in her direction, causing her a small abrasion on the right thigh. On the same day minor offences proceedings were instituted against both parties to the conflict for breach of public peace and order, but they were discontinued on 3 August 2005 on the ground of prescription.

11. On 6 July 2003 B.P. requested the intervention of the police because the second applicant had allegedly disposed of some dirt on her balcony, which resulted in a verbal altercation.

12. On 9 July 2003 the police intervened in connection with B.P.’s insults against P.V. (the first applicant’s late husband) related to his Serbian ethnic origin, and on the same day instituted minor offences proceedings against B.P. for breach of public peace and order. On 19 September 2006 the proceedings were discontinued on the ground of prescription.

13. On 21 November 2003 B.P. requested the intervention of the police because water was pouring from the applicants’ balcony into their flat.

14. On 3 February 2004 the police intervened because the first applicant had allegedly disposed of some dirt on the balcony of B.P.

15. On 25 May 2005 the first applicant requested the intervention of the police after a verbal altercation with M.P. relating to the manner in which she was dusting.

16. On 27 May 2005 M.P. reported to the police that the first applicant was threatening him. He did not insist on pursuing the matter but requested the police to warn her.

17. On 18 July 2005 the first applicant had a dispute with D.P. concerning her flowers and therefore she requested the intervention of the police.

18. On 8 October 2005 police intervention was requested in connection with the first applicant’s and D.P.’s mutual insults related to, inter alia, her Serbian ethnic origin and his Croatian ethnic origin. Minor offences proceedings were instituted on the same day against both participants to the altercation and on 26 March 2007 they were discontinued on the ground of lack of evidence. This decision became final on 21 August 2008.

19. On 22 September 2006 both the first applicant and B.P. requested the intervention of the police, alleging an attack by the other party. The police intervened at the scene but found their statements confusing to the extent that it was impossible to establish the exact course of the events.

20. On 1 October 2006 the police intervened on the basis of B.P.’s complaint that P.V. had insulted and attacked her. The police found that both participants in the alleged attack were providing confusing statements.

21. On 6 December 2006 B.P. requested the intervention of the police concerning a glass that had fallen from the applicants’ flat on to her balcony.

22. On the same day B.P. lodged a criminal complaint against the first applicant, claiming that she had insulted and threatened her. On 16 January 2007 the Z. Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zap.) rejected the criminal complaint as ill-founded.

23. On 13 January 2007 M.P. informed the police that water was pouring from the applicants’ flat and that the first applicant had spat on him.

24. On 24 January 2007 the third applicant requested the intervention of the police, alleging that B.P. had insulted her and attacked her while she was holding the fourth applicant. The police found that the third applicant had sustained an abrasion on her left forearm but no evidence that the attack had happened in the presence of the fourth applicant. On the same day the police instituted minor offences proceedings against B.P. for breach of public peace and order and on 16 April 2009 the proceedings were discontinued on the ground of prescription. The Z. Municipal State Attorney’s Office was also informed of the incident and it requested a medical report concerning the alleged injuries sustained by the fourth applicant during the incident. On 17 May 2007 a doctor who had examined the fourth applicant after the incident informed the Z. Municipal State Attorney’s Office that he had not found any injuries on the fourth applicant and that the third applicant had refused further medical examinations of the fourth applicant.

25. On 24 January 2007 B.P. informed the police of a conflict with the applicants.

26. On 25 January 2007 the third applicant complained to the police about the problems of her family with M.P. and B.P.

27. On 29 January 2007 B.P. lodged a criminal complaint against P.V. on charges of making threats. On 26 April 2007 the Z. Municipal State Attorney’s Office rejected the criminal complaint on the ground that the alleged conduct did not constitute a criminal offence.

28. On 9 March 2007 the police received an anonymous call that the fourth applicant had been molested within her family.

29. On 19 August 2007 the police instituted minor offences proceedings against the first and third applicants, P.V., B.P. and a certain LJ.B. for mutual insults. On 13 December 2007 the proceedings were discontinued on formal grounds.

30. On 20 August 2007 the third applicant reported to the police that B.P. had threatened her.

31. On 10 October 2007 B.P. reported to the police that P.V. had threatened her. The complaint was forwarded to the Z. Municipal State Attorney’s Office, which rejected it on 18 December 2007 on the ground of lack of evidence.

32. On 15 October 2007 the first applicant called the police about an incident involving B.P.

33. On 28 October 2007 B.P. complained to the police about an incident involving the applicants’ family.

34. On 12 August 2008 the second applicant complained to the police about the conduct of B.P. and M.P.

35. On 17 August 2008 the police received two anonymous calls – one alleging that B.P. had been drunk disturbing public peace and order, and the second alleging that there had been fighting in the applicants’ flat. The police interventions did not confirm any of the allegations.

36. On 12 September 2008 D.P. requested the intervention of the police, alleging that the second applicant had insulted him.

37. On 23 September 2008 D.P. requested the intervention of the police, claiming that the third applicant had attacked his son.

38. On 27 September 2009 the police received an anonymous call alleging domestic violence in the applicants’ family.

39. On 30 September 2008 the first applicant reported to the police that D.P. had damaged her flowers.

40. On 11 October 2008 B.P. complained to the police about the conduct of the applicants.

41. On 13 October 2008 the third applicant called the police concerning the parking of M.P.’s car.

42. On 28 January 2009 P.V. complained to the police about harassment by B.P.

43. On 26 February 2009 the second applicant reported to the police that S.P., wife of their neighbour D.P., had unlawfully installed surveillance cameras in the building. The police established that the complaints were unfounded.

44. On 28 March 2009 the third applicant reported to the police that she had had a verbal altercation with B.P. concerning the fourth applicant.

45. On 10 April 2009 the second applicant reported to the police a verbal altercation with B.P.

46. On 8 May 2009 the first applicant called the police, maintaining that she had had verbal altercation with B.P.

47. On 14 May 2009 the police received an anonymous call that the applicants and B.P. and M.P. had been arguing but the police found no incident at the scene.

48. On 25 May 2009 the second applicant reported to the police a verbal altercation with M.P.

49. On 26 May 2009 B.P. requested police intervention, claiming that the first applicant had insulted her.

50. On 13 August 2009 the police received an anonymous call about an incident involving the applicants but the intervention did not disclose any breach of the law.

51. On 14 August 2009 the third applicant complained to the police about the conduct of B.P., alleging that she had attacked her.

52. On the same day B.P. first requested police intervention, claiming that she had been physically attacked, and then she lodged a criminal complaint against P.V. on charges of making threats. The Z. Municipal State Attorney’s Office rejected the criminal complaint on 26 August 2009 on the ground of lack of evidence.

53. On 4 October 2009 the police received an anonymous call that there was fighting in the applicants’ flat but an intervention at the scene did not confirm that.

54. On 20 October 2009 the third applicant requested the intervention of the police, claiming that B.P. had thrown some garbage in front of her flat.

55. On the same day B.P. informed the police that there was fighting inside the applicants’ flat but an intervention at the scene did not confirm that. Later on the same day she lodged a criminal complaint against the first and the third applicants and P.V. on charges of making threats and once again requested the intervention of the police, claiming that somebody from the applicants’ flat had thrown a tomato on to her balcony. The criminal complaint lodged by B.P. was rejected by the Z. Municipal State Attorney’s Office on 20 November 2009 on the ground of lack of evidence.

56. On 21 October 2009 B.P. requested the intervention of the police in relation to a verbal altercation with the first applicant.

57. On 15 November 2009 M.P. requested the intervention of the police, claiming that he was being harassed by the second applicant.

58. On 15 March 2010 B.P. reported to the police that the first applicant had threatened her. She also lodged a criminal complaint which was rejected by the Z. Municipal State Attorney’s Office on 31 March 2010 on the ground that the event at issue did not constitute an offence prosecuted ex officio.

59. On 25 March 2010 police intervention was requested in connection with a verbal altercation between the first applicant and B.P. On the same day the police instituted minor offences proceedings against both of them on charges of breach of public peace and order. On 15 September 2010 the competent Minor Offences Court acquitted them on the ground of lack of evidence.

60. On 10 May 2010 the police first received an anonymous call that there was fighting inside the applicants’ flat and then B.P. requested police intervention, claiming that the first applicant had spilled boiling water on her. Both police interventions could not confirm any unlawful conduct.

61. On 19 August 2010 M.P. lodged a criminal complaint with the police against P.V., alleging that he had threatened him during their verbal altercation on the day before (see paragraphs 98-103 below).

62. On 20 August 2010 the third applicant and B.P. requested the intervention of the police, accusing each other of making threats.

63. On 12 September 2010 the first applicant insulted D.P. in the presence of the police officers. She was indicted in the Minor Offences Court and on 13 January 2011 found guilty on charges of breach of public peace and order. This judgment became final on 26 January 2011.

64. On 14 March 2011 B.P. lodged a criminal complaint against the second applicant on charges of making threats in connection with their conflict of the same day (see paragraphs 107-112 below). On 10 May 2011 the Z. Municipal State Attorney’s Office rejected the criminal complaint on the ground of lack of evidence.

65. On 30 May 2011 the third applicant requested the intervention of the police, claiming that B.P. had insulted her.

66. On 15 June 2011 the first applicant requested the intervention of the police, claiming that she was disturbed by the music emanating from M.P.’s flat. The police intervened at the scene and established that there had been a verbal and physical conflict between the parties. Concerning the event the police lodged a criminal complaint against M.P. (see paragraph 121 below) and on 5 July 2011 they instituted minor offences proceedings against B.P. and the first, second and third applicants on charges of breach of public peace and order. On 15 May 2013 the competent Minor Offences Court found them all guilty as charged. It appears that the proceedings are pending on appeal before the High Minor Offences Court (Visoki prekršajni sud Republike Hrvatske).

67. On 1 July 2012 the first applicant requested the intervention of the police, claiming that her neighbour S.P. usually closed the entrance doors of the building which disturbed her when she needed to walk her dog.

68. On 30 July 2012 the third applicant called the police in connection with a verbal altercation with B.P. but the police found no evidence to confirm any unlawful conduct.

69. On 1 August 2012 B.P. reported to the police that the first applicant harassed her child but an intervention did not confirm any such allegations.

70. On 14 August 2012 B.P. lodged a criminal complaint against the second applicant on charges of making threats.

71. On 17 August 2012 S.P. requested an intervention of the police, claiming that she had been insulted by the first applicant.

72. On 26 August 2012 the third applicant requested the intervention of the police, complaining that somebody was knocking on her doors but the police intervention did not confirm any such allegations.

73. On 29 August 2012 the third applicant reported to the police that B.P. did not allow her to exit the building. The police intervention did not confirm any unlawful conduct.

74. On 24 September 2012 S.P. requested the intervention of the police because the first applicant was allegedly falsely accusing her of stealing electricity.

75. On 4 October 2012 the third applicant reported to the police a verbal altercation between B.P. and the first applicant.

76. On 10 October 2012 the police intervened on the basis of a complaint by B.P. alleging that the third applicant had insulted her. Both parties made allusions to their Serbian and Croatian ethnic origins respectively. On the same day they lodged criminal complaints on charges of making threats.

77. On 9 March 2013 the first applicant requested the intervention of the police, claiming that D.P. had been provoking her and behaving inappropriately.

78. On 22 June 2013 B.P. requested the intervention of the police, alleging that the first applicant had insulted her making allusions to her ethnic origin.

79. On 7 September 2013 the third applicant requested the intervention of the police in connection with an alleged noise emanating from M.P.’s flat but the police intervention did not confirm any such allegations.

80. On 11 September 2013 B.P. requested the intervention of the police, claiming that the first applicant had insulted and threatened her husband.

81. On 24 January 2014 S.P. requested the intervention of the police with regard to a dispute she had with the first applicant concerning the electricity bills.

82. On 4 February 2014 the police received an anonymous call that a noise was emanating from the applicants’ flat but the police intervention did not confirm that.

83. On the same day the second applicant requested the intervention of the police, referring to the problems with her neighbours.

84. On 18 February 2014 S.P. requested the intervention of the police, claiming that she had been attacked by the third applicant, but the police intervention could not confirm any unlawful conduct.

85. On 6 March 2014 B.P. requested the intervention of the police, alleging that the first applicant had insulted her in the presence of her child.

2. Criminal proceedings concerning the applicants’ conflicts with their neighbours

(a) The incidents of September/October 2006

86. On 4 December 2006 the police informed the Z. Municipal State Attorney’s Office of the third applicant’s criminal complaints against B.P. of 25 September 2006 and against M.P. of 3 October 2006 on charges of making threats and discriminatory references to her and P.V.’s ethnic origin on 22 September and 1 October 2006.

87. Based on the allegations contained in the criminal complaint, on 7 December 2006 the Z. Municipal State Attorney’s Office indicted B.P. and M.P. in the Zap. Municipal Court (Općinski sud u Zap.).

88. During the proceedings the Zap. Municipal Court commissioned a psychiatric report concerning B.P.

89. A report of 10 October 2008 indicated that B.P. had a personality disorder but that she was capable of understanding the meaning of her acts. It also recommended B.P.’s psychiatric treatment although not necessarily by ordering it as a safety measure in criminal proceedings.

90. On 17 February 2009 the Z. Municipal State Attorney’s Office dropped the charges against B.P. on the ground that they were based on conflicting evidence.

91. On 20 April 2009 the Zap. Municipal Court found M.P. guilty on charges of making threats and sentenced him to one month’s imprisonment, suspended for one year.

92. M.P. appealed against this judgment to the V.G. County Court (Županijski sud u V.G.) and on 6 July 2009 the V.G. County Court quashed it and ordered a retrial on the ground that the judgment was based on conflicting evidence.

93. On 29 September 2009 the Z. Municipal State Attorney’s Office, relying on the findings of the V.G. County Court, dropped the charges against M.P. on the ground that they were based on conflicting statements of the third applicant and P.V.

(b) The incident of 25/26 May 2009

94. On 14 July 2009 the police informed the Z. Municipal State Attorney’s Office of the third applicant’s criminal complaint against B.P. of 26 May 2009 on charges of making threats and discriminatory references to her ethnic origin.

95. On 24 July 2009 the Z. Municipal State Attorney’s Office indicted B.P. in the Zap. Municipal Court.

96. On 4 October 2010 the Zap. Municipal Court found B.P. guilty on charges of making threats and sentenced her to three months’ imprisonment, suspended for one year.

97. This judgment became final on 20 February 2012.

(c) The incident of 18 August 2010

98. On 18 August 2010 the third applicant requested the intervention of the police in connection with an altercation with M.P. and B.P. She also lodged a criminal complaint against M.P. on charges of making threats.

99. The matter was reported to the Z. Municipal State Attorney’s Office and on 14 September 2010 it indicted M.P. in the Zap. Municipal Court on charges of making threats.

100. On 12 October 2010 the Zap. Municipal Court issued a penal order against M.P. However, he objected to the order and therefore a trial was opened.

101. Due to a reorganisation of the judicial work, the case file was transferred to the Z. Municipal Criminal Court (Općinski kazneni sud u Z.).

102. On 13 January 2012 the Z. Municipal Criminal Court found M.P. guilty and sentenced him to two months’ imprisonment, suspended for one year.

103. This judgment became final on 28 August 2012.

(d) The incident of 20 August 2010

104. In connection with the incident of 20 August 2010 (see paragraph 62 above), on 10 November 2010 the Z. Municipal State Attorney’s Office indicted P.V. and the first and third applicants in the Z. Municipal Court on charges of making threats against B.P.

105. On 7 January 2011 the Zap. Municipal Court issued a penal order against P.V. and the first and third applicants. However, based on their objection the penal order was set aside and a trial was opened.

106. On 1 July 2011 the Z. Municipal State Attorney’s Office dropped the charges against P.V. and the first and third applicants on the ground that the charges were based on conflicting witness statements.

(e) The incident of 14 March 2011

107. On 16 June 2011 the second applicant instituted a private prosecution in the Zap. Municipal Court against B.P. on charges of causing bodily injury in connection with an incident of 14 March 2011 during which the second applicant had sustained a contusion on the left thigh.

108. Meanwhile, the case file was transferred to the Z. Municipal Criminal Court (see paragraph 101 above).

109. At a hearing on 5 July 2013 the second applicant submitted an expert report of 25 May 2007 concerning the fourth applicant indicating that she was under stress in relation to the conflicts of her family with their neighbours and that there was a possibility of her emotional harassment in that respect. However, the expert report did not confirm any acute or chronic signs of trauma or symptoms or indications of any psychiatric disorder.

110. At the same hearing, a forensic expert confirmed the second applicant’s injury.

111. On 5 July 2013 the Z. Municipal Criminal Court found B.P. guilty as charged and sentenced her to two months’ imprisonment, suspended for two years.

112. This judgment became final on 11 October 2013.

(f) The incident of 28 March 2011

113. On 28 March 2011 the third applicant requested the intervention of the police in connection with damage to the front doors of the applicants’ flat caused by B.P. On the same day the second applicant lodged a criminal complaint against B.P. on charges of causing damage to her property. The complaint was forwarded to the Z. Municipal State Attorney’s Office.

114. On 29 April 2011 the Z. Municipal State Attorney’s Office indicted B.P. in the Zap. Municipal Court on charges of causing damage to the second applicant’s property.

115. The case file was transferred to the Z. Municipal Criminal Court (see paragraph 101 above).

116. At a hearing on 11 December 2013 the second applicant set out a civil claim for damages against B.P.

117. During the proceedings, the Z. Municipal Criminal Court commissioned an expert psychiatric report concerning B.P.

118. An expert report of 10 January 2014 found that B.P. had developed an addiction to alcohol and that she needed treatment which could be ordered as a safety measure in the criminal proceedings.

119. On 10 February 2014 the Z. Municipal Criminal Court found B.P. guilty and sentenced her to five months’ imprisonment, suspended for three years. It also ordered B.P. to undergo treatment for her alcohol addiction. The second applicant was instructed that she could claim damages in respect of her front doors in separate civil proceedings.

120. This judgment became final on 1 April 2014.

(g) The incident of 15 June 2011

121. On 15 June 2011, following a verbal altercation, M.P. physically attacked the second applicant with a wooden stick, causing her injuries to the head and contusions on the left arm, chest and shoulder. On the same day the police intervened at the scene, arrested M.P. and took the necessary actions to investigate the matter.

122. The case was reported to the Z. Municipal State Attorney’s Office and on 14 July 2011 it indicted M.P. in the Zap. Municipal Court on charges of attempted grave bodily injury.

123. On 15 July 2011 the Zap. Municipal Court ordered M.P. not to approach or otherwise contact the first, second and third applicants.

124. The case file was transferred to the Z. Municipal Criminal Court (see paragraph 101 above).

125. During the proceedings before the Z. Municipal Criminal Court the second applicant set out her civil claim for damages against M.P.

126. After several unsuccessful attempts to summon the defendant, a hearing was held on 19 March 2012 at which M.P. pleaded not guilty. Further hearings were held on 15 May and 15 October 2012 and a hearing scheduled for 28 January 2013 was adjourned because M.P.’s lawyer withdrew from the case. The Z. Municipal Criminal Court held further hearings on 21 March and 24 May 2013.

127. Following a hearing on 5 July 2013 the Z. Municipal Criminal Court found M.P. guilty and sentenced him to four months’ imprisonment suspended for two years. The second applicant was instructed that she could seek damages in separate civil proceedings.

128. On 3 December 2013, based on an appeal of the State Attorney’s Office, the Z. County Court (Županijski sud u Z.) quashed the first-instance judgment and ordered a retrial on the ground of conflicting reasoning of the judgment.

129. According to the applicants, in the resumed proceedings M.P. was found guilty and sentenced to eight months’ imprisonment. He appealed and the appeal proceedings are still pending.

3. Other relevant facts

130. On 3 January 2013 B.P. requested the Zap. Social Care Centre (Centar za socijalnu skrb Zap.) to facilitate a settlement of her disputes with the third applicant.

131. A meeting at the Zap. Social Care Centre was scheduled for 10 January 2013 but the parties failed to appear.

B. Relevant domestic law

1. Constitution

132. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows:

Article 14

“Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.

All shall be equal before the law.”

Article 23

“No one shall be subjected to any form of ill-treatment ...”

Article 35

“Everyone has the right to respect for and legal protection of his or her private and family life, dignity, reputation and honour.”

2. Criminal Code

133. The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, with further amendments) provides:

Article 8

“(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney’s Office in the interest of the Republic of Croatia and its citizens.

(2) In exceptional circumstances the law may provide for criminal proceedings in respect of certain criminal offences to be instituted on the basis of a private prosecution or for the State Attorney’s Office to institute criminal proceedings following [a private] application.”

3. Code of Criminal Procedure

134. 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) provided:

Article 2

“(1) Criminal proceedings shall only be instituted and conducted upon the order of a qualified prosecutor. ...

(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences that may be prosecuted privately the qualified prosecutor shall be a private prosecutor.

(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.

(4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party may take his place as a subsidiary prosecutor under the conditions prescribed by this Act.”

Article 11

“Nobody can be tried twice for an offence for which he or she has been tried and in respect of which a final court decision has been adopted.”

135. Articles 47 to 61 regulated the rights and duties of private prosecutors and of injured parties acting as subsidiary prosecutors. A private prosecutor (privatni tužitelj) was an injured party who brought a private prosecution in respect of criminal offences for which such a prosecution was expressly allowed by the Criminal Code (these were offences of a lesser degree). An injured party acting as a subsidiary prosecutor (oštećeni kao tužitelj) was a person taking over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities, for whatever reason, had decided not to prosecute (Article 55). When acting as a subsidiary prosecutor, the victim had all rights in the proceedings which the State Attorney’ Office would have had as public prosecuting authority, save for those vested in the State Attorney’s Office as a state body.

Pursuant to Article 58, the State Attorney’s Office was authorised, on a discretionary basis, to take over a prosecution from a subsidiary prosecutor at any point before the end of the trial.

136. Relevant provisions concerning the processing of criminal complaints provided:

Article 174

“(1) The State Attorney shall reject a criminal complaint by a reasoned decision if the offence in question is not an offence subject to automatic prosecution, if the prosecution is time-barred or an amnesty or pardon has been granted, or other circumstances excluding criminal liability or prosecution exist, or there is no reasonable suspicion that the suspect has committed the offence. The State Attorney shall inform the victim about his decision ... within eight days (Article 55) and if the criminal complaint was submitted by the police, he shall also inform the police.

...”

4. Minor Offences Act

137. The relevant provision of the Minor Offences Act (Prekršajni zakon, Official Gazette no. 107/2007) provides:

Section 1

“A minor offence is an act which breaches the public order, social discipline or other social values and is not listed as an offence under the Criminal Code or other regulation listing offences.”

Section 109

“(1) The competent prosecutor is:

...

2. State administrative body,

...

4. victim.”

5. Minor Offences against Public Order and Peace Act

138. The relevant part of the Minor Offences against Public Order and Peace Act (Zakon o prekršajima protiv javnog reda i mira, Official Gazette nos. 5/1990, 47/1990 and 29/1994; hereinafter: the “Public Peace and Order Act”) reads:

Section 13

“Whoever in a public place fights, argues, yells or otherwise breaches public order and peace, shall be liable to a fine ... or to a term of imprisonment not exceeding sixty days.”

6. Civil Obligations Act

139. The relevant parts of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005, 41/2008 and 125/2011), read as follows:

Section 19

“(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act.

(2) The right to respect for one’s personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, and the right to respect for one’s name and the privacy of one’s personal and family life, freedom et alia.

...”

Section 1046

“Damage is ... infringement of the right to respect for one’s personal dignity (non-pecuniary damage).”

Section 1048

“Anyone may request a court or other competent authority to order the cessation of an activity which violates his or her rights of personality and the elimination of its consequences.”

7. Prevention of Discrimination Act

140. The relevant parts of the Prevention of Discrimination Act (Zakon o suzbijanju diskriminacije, Official Gazette no. 85/2008) provide:

Section 1

“(1) This Act ensures protection and promotion of equality as the highest value of the constitutional order of the Republic of Croatia; creates conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour, gender, language, religion, political or other conviction, national or social origin, state of wealth, membership of a trade union, education, social status, marital or family status, age, health, invalidity, genetic inheritance, gender identity, expression or sexual orientation.

(2) Discrimination within the meaning of this Act means putting any person in a disadvantageous position on any of the grounds under subsection 1 of this section, as well as his or her close relatives.

...”

Section 8

“This Act shall be applied in respect of all State bodies ... legal entities and natural persons ...”

Section 16

“Anyone who considers that, owing to discrimination, any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue, and may also seek protection in separate proceedings under section 17 of this Act.”

Section 17

“(1) A person who claims that he or she has been a victim of discrimination in accordance with the provisions of this Act may bring a claim and seek:

(1) a ruling that the defendant has violated the plaintiff’s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff’s right to equal treatment (claim for an acknowledgment of discrimination);

(2) a ban on (the defendant’s) undertaking acts which violate or may violate the plaintiff’s right to equal treatment or an order for measures aimed at removing discrimination or its consequences to be taken (claim for a ban or for removal of discrimination);

(3) compensation for pecuniary and non-pecuniary damage caused by the violation of the rights protected by this Act (claim for damages);

(4) an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant’s expense.”

COMPLAINTS

The applicants complained, under Articles 3, 8, 13 and 14 of the Convention, of a failure of the State authorities to provide them with adequate protection from constant harassment by their neighbours.

THE LAW

141. Complaining of a failure of the State authorities to provide them with adequate protection from constant harassment by their neighbours, the applicants relied on Articles 3, 8, 13 and 14 of the Convention, which read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8

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

Article 13

“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.”

Article 14

“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.”

A. The parties’ arguments

1. The Government

142. The Government submitted that the only sufficiently serious incident which could raise an issue under Article 3 of the Convention was the incident of 15 June 2011. However, given that in respect of that incident criminal proceedings were pending (see paragraphs 121-129 above) the Government considered that the applicants’ complaint was premature. Furthermore, the Government argued that for the remainder of the incidents complained of the applicants should have used private prosecution or should have pursued the matter as subsidiary prosecutors after the refusal of the State Attorney’s Office to institute criminal proceedings. Similarly, they could have instituted civil proceedings seeking damages and, had they considered that there had been any discrimination, they could have instituted proceedings under the Prevention of Discrimination Act. In the Government’s view, the failure of the applicants to avail themselves of these remedies suggested that they had failed to exhaust the domestic remedies. In addition, the Government considered that by providing inconsistent arguments before the Court the applicants had abused their right of individual application.

143. The Government stressed that the case essentially concerned a long-lasting conflict between two neighbouring families in which each side considered itself to be the victim and the other side the aggressor. During the years of their conflicts they had requested an intervention of the police on a number of occasions for any possible disagreement they could have had with the other side. At the same time, in the Government’s view, the evidence showed that all other neighbours had avoided any contact with the applicants given that even a small dispute would lead to them calling the police and arguing that they had been victims of ethnic prejudice. In this connection the Government submitted that the police had always investigated any leads as to possible ethnic prejudice. However, in the Government’s view, the applicants’ complaints in this respect, both at the domestic level and before the Court, had been inconsistent. Moreover, the evidence showed that the ethnic aspect had been used in the context of mutual insults by both parties to the conflict.

144. The Government also pointed out that the police had always promptly intervened at the scene concerning the applicants’ complaints and had instituted the relevant proceedings when necessary. This could be seen with regard to the incident of 15 June 2011 when the police immediately responded at the scene and promptly informed the State Attorney’s Office, which had then instituted criminal proceedings in the competent court and in the course of these proceedings the competent court had issued a restraining order on M.P. not to approach the first, second and third applicants. The Government also pointed out that there was no evidence suggesting that the fourth applicant had sustained any injuries during the incident of 24 January 2007. In the Government’s view, by diligently responding to the applicants’ calls and by instituting the relevant proceedings when necessary, the State had done everything it could do to settle the conflict between the applicants and their neighbours. However, they had lacked any will to settle the disputes, which could be seen from the fact that they had not participated in the proceedings before the Social Care Centre.

2. The applicants

145. The applicants contended that there could be no question that both sides to the conflict were equally guilty since they had been the real victims of a constant harassment by their neighbours. It was true that the domestic authorities had taken some steps concerning their complaints but that had occurred only after the Court communicated the case to the Government. The applicants also pointed out, with regard to the incident of 15 June 2011, that the second applicant had been instructed to institute separate civil proceedings which would be ineffective in practice given that M.P. was unemployed. Accordingly, in view of the fact that B.P. was also unemployed and without any income, the applicants considered that it was illusory that civil proceedings for damages against them could produce any concrete result. On the contrary, this could only lead to further conflicts as it would mean that a possible award of damages would have to be enforced by the sale of M.P.’s and B.P.’s flat.

146. The applicants also considered that the case should be viewed as a whole and not as an amalgamation of isolated incidents. In their view, the domestic authorities had failed to put in place all relevant criminal-law mechanisms and to undertake other appropriate activities in the sphere of social care protection. In particular, they had failed to supervise the enforcement of sentences imposed to B.P. and had never obtained a proper assessment of the social circumstances in which the family of M.P. and B.P. functioned. There was also no evidence that the competent Social Care Centre took any measures to supervise the family of M.P. and B.P. and the criminal justice authorities had never involved the relevant social care services in the criminal proceedings so as to be able to make a proper assessment of the necessary actions that should have been taken. The applicants thus contended that by informing the competent authorities of a continuous and constant harassment by their neighbours, and by diligently pursuing their complaints, they had appropriately brought the matter to the attention of the authorities and had thus exhausted the domestic remedies. However, in their view, neither the relevant legislative framework nor the reaction of the authorities in practice had provided them with adequate protection from the violence of their neighbours.

147. The applicants further contended that M.P. and B.P. had various behavioural disorders which had not been properly addressed by the authorities. In particular, M.P. and B.P. had been violent towards the applicants whereas they had only once, on 15 June 2011, resorted to force and that was done in self-defence to the attack by M.P. and B.P. The applicants also stressed that they had called the police only when it had been necessary to protect them and that there was no reliable evidence suggesting that they had been responsible for any conflict or dispute. With regard in particular to the incident of 15 June 2011, the applicants considered that the State should not have allowed that to happen and that the incident could have been avoided had the authorities earlier taken effective measures against M.P. and B.P. Lastly, the applicants contended that the circumstances of the case showed that they had not had an effective remedy concerning their complaints and that the constant harassment of their neighbours and the failure of the authorities to adequately protect them adversely affected their private and family life.

B. The Court’s assessment

148. The Court finds it unnecessary to address all of the Government’s objections, as the complaints are in any event inadmissible for the following reasons.

149. Regarding the protection of the physical and psychological integrity of an individual from other persons, the Court has previously held that the authorities’ positive obligations – in some cases under Articles 2 or 3 and in other instances under Article 8 taken alone or in combination with Article 3 of the Convention – may include a duty to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see Söderman v. Sweden [GC], no. 5786/08, § 80, ECHR 2013).

150. More specifically, in the context of serious acts of violence under Articles 3 and 8 of the Convention this requires putting 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, for example, and Remetin v. Croatia, no. 29525/10, §§ 91, 93 and 96, 11 December 2012; and Valiulienė v. Lithuania, no. 33234/07, § 75, 26 March 2013). 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 be shown that the domestic legal system, and in particular the criminal law applicable in the circumstances of the case, failed to provide practical and effective protection to the applicants (see Beganović v. Croatia, no. 46423/06, § 71, 25 June 2009).

151. Furthermore, the Court reiterates that the State’s positive obligations concerning allegations of serious acts of violence by private parties under Articles 3 and 8 of the Convention imply the authorities’ duty to apply criminal-law mechanisms of effective investigation and prosecution (see, mutatis mutandis, M.C. v. Bulgaria, no. 39272/98, §§ 151-153, ECHR 2003‑XII). Nevertheless, only significant flaws in the application of relevant mechanisms would amount to a breach of the State’s positive obligations under Articles 3 and 8 of the Convention. Accordingly, the Court will not be concerned with allegations of errors or isolated omissions since it cannot replace the domestic authorities in the assessment of the facts of the case; nor can it decide on the alleged perpetrators’ criminal responsibility (see M.C., cited above, §§ 167 and 168; and Söderman, cited above, §§ 90-91).

152. The Court observes, moreover, that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this level depends on all the circumstances of the case. Factors such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim must all be taken into account (see, amongst many others, Costello‑Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247-C). Similarly, the particular treatment complained of must be sufficiently serious so as to entail adverse effects for an applicant’s physical or moral integrity falling within the scope of the prohibition contained in Article 8 (see, mutatis mutandis, Tonchev v. Bulgaria, no. 18527/02, § 41, 19 November 2009).

153. Previous cases where the Court has found that the State’s positive obligations under Article 3 were engaged in relations between private individuals serious instances of ill-treatment have concerned: beating of a child with a garden cane applied with considerable force on more than one occasion (see A. v. the United Kingdom, 23 September 1998, § 21, Reports of Judgments and Decisions 1998-VI); very serious neglect and abuse of children for a number of years (see Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 11-36, 40 and 74, ECHR 2001-V); extremely serious sexual and physical abuse over a long period of time (see E. and Others v. the United Kingdom, no. 33218/96, §§ 43 and 89, 26 November 2002); multiple rape (see M.C., cited above, §§ 16-21, 30 and 153); beating all over the body with wooden planks, leading to multiple rib fractures (see Šečić v. Croatia, no. 40116/02, §§ 8, 11 and 51 31 May 2007; anal fissure caused by several attackers in highly intimidating circumstances (see Nikolay Dimitrov v. Bulgaria, no. 72663/01, §§ 9 and 70 27 September 2007); and incidents concerning both verbal and physical harassment, including violent acts such as burning the applicant’s hands with cigarettes, pushing him against an iron fence and hitting him with a ball, which lasted for a prolonged period of time and where the applicant was an individual suffering from serious mental disorders (see Đorđević v. Croatia, no. 41526/10, §§ 90-93, ECHR 2012). By contrast, the Court considered that, a wilful, but not very violent attack consisting of the one-off throwing of a small piece of tile resulting in a longitudinal wound on the left eyebrow measuring 11 to 3 millimetres and a bruise on the lower left eyelid measuring 5 to 3 millimetres was not sufficiently harsh to bring Article 3 into play (see Tonchev, cited above, §§ 39-40). Similarly, the Court found that wilful but not very serious injuries such as two small wounds, swelling, two bruises, a welt across the buttocks, and abrasions on both knees, inflicted during a brawl which broke out in the context of an ongoing family dispute in which the applicants also apparently actively participated did not give rise to an arguable claim of ill-treatment contrary to Article 3, capable of triggering the State’s positive obligations (see Ilieva and Georgieva v. Bulgaria (dec.), no. 9548/07, § 30, 17 April 2012).

154. Furthermore, the Court observes that previous cases in which it found that Article 8 of the Convention required an effective application of criminal-law mechanisms concerned: sexual abuse of a mentally handicapped individual (see X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91); allegations of physical attack against the applicant by three individuals during which she was kicked and thrown down the stairs (see Sandra Janković v. Croatia, no. 38478/05, § 47, 5 March 2009); beating of a thirteen-year old by a grown-up man causing multiple physical injuries (see Remetin, cited above, § 91); beating of an individual causing a number of injuries to her head requiring hospitalisation (see Isaković Vidović v. Serbia, no. 41694/07, § 61, 1 July 2014); and serious instances of domestic violence (see A v. Croatia, no. 55164/08, § 67, 14 October 2010). By contrast, in respect of less serious acts between individuals, which may violate psychological integrity, the obligation of the State under Article 8 to maintain and apply in practice an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection (see Söderman, cited above, § 85).

155. The Court notes at the outset that the case at issue concerns an ongoing long-lasting dispute between the applicants and their neighbours, which all parties to the conflict are seeking to settle by involving various domestic criminal justice authorities, in particular the police and the State Attorney’s Office. Specifically, both the applicants and their neighbours have on a number of occasions requested the intervention of the police and they have lodged numerous criminal complaints accusing the other side of threats, insults and violence. However, a vast majority of such complaints concerned trivial matters such as disposing of dirt or pouring water on the balcony (see paragraphs 11 and 13 above), the manner of dusting (see paragraph 15 above), keeping of flowers (see paragraph 17 above), or false allegations of noise and violence in the flat of the neighbours (see paragraphs 79 and 82 above), as well as any verbal altercation they might have had (see, for example, paragraphs 45, 46, 48 and 49 above). Nevertheless, the Court cannot fail to observe that the police diligently responded to all such requests for intervention, taking the appropriate measures within their competence.

156. In addition, both parties were accusing each other of causing violent incidents in the presence of their children but such allegations were never clearly confirmed (see paragraphs 44, 69 and 85 above). In this connection the Court notes that on 25 January 2007 the third applicant requested the intervention of the police, claiming that she had been attacked by B.P. in the presence of the fourth applicant. However, the police intervention could not confirm these allegations and a subsequent medical examination of the fourth applicant did not find that she had sustained any injuries (see paragraph 24 above). Similarly, although during the criminal proceedings instituted by the second applicant against B.P. she produced an expert report concerning the fourth applicant’s alleged emotional harassment by the constant violent incidents, that report did not conclusively confirm any signs of trauma or symptoms or indications of any psychiatric disorder (see paragraph 109 above). Whereas it is conceivable that as a result of the ongoing disputes of her family with their neighbours the fourth applicant might have suffered a certain psychological trauma, there is nothing before the Court showing that she suffers any severe or long-lasting psychological effects (see Tonchev, cited above, § 39).

157. Furthermore, the Court notes that although in their initial application to the Court the applicants argued that the authorities had not appropriately addressed the violent incidents related to their ethnic origin, in their further observations they failed to provide any relevant arguments in this respect. In any case the Court notes that both the applicants and their neighbours were constantly accusing each other of making insults and threats related to their ethnic origin (see paragraphs 10, 12, 18, 76 and 78 above). This suggests that the ethnic aspect was used in the context of an abusive discourse by all participants to the conflict rather than as a wilful discriminatory motive to a violent crime. Moreover, the Court notes that the use of such language was not ignored by the competent authorities, which addressed the use of these inappropriate remarks in their actions against M.P. and B.P. (see paragraphs 86 and 94 above). Accordingly, given the context in which those remarks were made, the Court is not persuaded that the domestic authorities were required to take any further action in respect of the applicants’ allegations (compare Beganović, cited above, §§ 96-98).

158. With regard to the physical injuries sustained by the applicants the Court observes that the only sufficiently ascertainable injuries inflicted upon them concerned a small abrasion on the second applicant’s right thigh caused on 15 June 2003 (see paragraph 10 above); an abrasion on the third applicant’s left forearm during the incident of 24 January 2007 (see paragraph 24 above); a contusion on the left thigh sustained by the second applicant related to the incident of 14 March 2011 (see paragraph 107 above); and injuries to the head and contusions on the left arm, chest and shoulder sustained by the second applicant on 15 June 2011 (see paragraph 121 above).

159. In view of its case-law, the Court considers that only the injuries sustained by the second applicant on 15 June 2011 were sufficiently serious as to trigger the authorities’ positive obligations under Article 3 of the Convention (see paragraph 153 above). It also considers, in view of the nature of the applicants’ conflicts with their neighbours, that this is the only incident giving rise to the domestic authorities’ obligation under Article 8 of the Convention to effectively apply criminal-law mechanisms (see paragraph 154 above).

160. In connection with the incident of 15 June 2011, the Court notes that the police immediately responded at the scene, arrested M.P. and promptly undertook all measures to investigate the circumstances of the case. Based on the results of the investigation the police duly informed the State Attorney’s Office and the latter on 14 July 2011 instituted proceedings in the competent court. Already the next day, on 15 July 2011, a restraining order was issued against M.P., prohibiting him from contacting the applicants. There is also nothing in the ensuing court proceedings which discloses any flaws in the handling of the case by the domestic authorities (see paragraphs 121-128 above).

161. However, as it appears from the information available to the Court, these proceedings are pending on appeal after M.P.’s conviction at first-instance and his sentence to eight months’ imprisonment (see paragraph 129 above). Accordingly, in these circumstances the Court finds that the second applicant’s complaint in that respect is premature and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

162. With regard to the remainder of the applicants’ allegations, and in view of its findings above (see paragraphs 159-160 above), the Court notes that there is no dispute between the parties that the applicants have the possibility of filing a claim before the civil courts, seeking compensation for the alleged damage and abuse of their rights (see paragraphs 139-140 above). This is particularly true given that a substantial obstacle to an effective use of such a remedy was removed by the convictions of M.P. and B.P. by the competent criminal courts (see, by contrast, Sandra Janković, cited above, § 36).

163. As regards the applicants’ argument that civil proceedings for damages would be ineffective in practice given that B.P. and M.P. were unemployed and would not have financial means to pay any compensation ordered, it is sufficient for the Court to note that it cannot speculate as to whether B.P. and M.P. did have means to pay any compensation or had other resources from which the applicants could, in the event of a successful outcome, enforce their claim for damages. Moreover, the Court cannot fail to observe that the second applicant twice lodged claims for damages in the course of the criminal proceedings against B.P. and M.P., a fact that does not fit well with the applicants’ argument before the Court that there was no use in instituting civil compensation proceedings against B.P. and M.P. (see paragraphs 116 and 125 above).

164. Therefore, having regard to the authorities’ response to the applicants’ requests for interventions, the measures adopted and the proceedings instituted by the authorities as well as the possibility of instituting civil compensation proceedings, the Court finds no appearance of deficiencies in the relevant domestic framework concerning the applicants’ specific complaints. It follows that they are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 January 2016.

              Stanley NaismithIşıl Karakaş
RegistrarPresident

Full & Egal Universal Law Academy