CASE OF VOJNOVIĆ v. CROATIA

FIRST SECTION

CASE OF VOJNOVIĆ v. CROATIA

(Application no. 5151/15)

JUDGMENT

This version was rectified on 22 January 2019

under Rule 81 of the Rules of Court

STRASBOURG

4 October 2018

This judgment is final but it may be subject to editorial revision.

In the case of Vojnović v. Croatia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Kristina Pardalos, President,
Ksenija Turković,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,

Having deliberated in private on 11 September 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 5151/15) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Radmila Vojnović (“the applicant”), on 19 January 2015.

2. The applicant, who had been granted legal aid, was represented by Ms I. Bojić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant complained, under Articles 3 and 8 of the Convention, of the inadequate procedural response of the domestic authorities to her allegations of harassment, arson and threats made by a private party. On 16 February 2015 these complaints were communicated to the Government

4. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background to the case

5. The applicant was born in 1972 and lives in Zagreb.

6. In 2004 the applicant occupied a flat in Zagreb situated in a decayed building in the wider city centre of Zagreb.

7. In 2005, in the context of the denationalisation process, a certain V.W-M. became the owner of the building.

8. Soon afterwards the area in which the building was located attracted the interest of real-estate investors, and many residential and commercial buildings were built there. V.W-M. took certain measures with a view to selling her property.

B. Incident of 22 December 2005

9. In the early hours of 22 December 2005 the applicant informed the police that a bullet had been shot into her flat. The police immediately responded at the scene and found that a bullet had entered the applicant’s flat though a window. The scene was secured and the applicant spent the night with a friend.

10. A further onsite inspection was carried out by the police, but the bullet was not found. The applicant was interviewed about the circumstances of the shooting but she could not provide any further details, as she had been sleeping at the time when the bullet had entered the flat.

11. On 18 January 2006 the police lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu – hereinafter “the State Attorney’s Office”) against an unknown perpetrator in relation to charges of endangering life and property through dangerous acts or means (shooting).

12. There is no information to indicate that any further investigative steps have been taken. The perpetrator remains unknown.

C. Incidents in 2010

13. On 10 November 2010 the applicant called the police to report that she had recently heard noise from the neighbouring building, where nobody was supposed to be living. She feared that something suspicious was happening. The police carried out an inspection of the scene but only found in the vicinity a homeless person, who argued that he had never been in the building in question.

14. On 22 November 2010 the applicant and her neighbour, T.O., reported to the police that a certain M.B. had often visited the applicant’s building, explaining that he represented an investor. He had offered to the applicant 1,000 euros (EUR) to leave her flat. After she had refused that offer, he had threatened to move into her flat when she was absent.

15. In connection with the applicant’s allegations, on 21 December 2010 the police interviewed M.B. He explained that he had been interested in buying the building containing the applicant’s flat, and that for that reason he had entered into negotiations with the tenants. However, he denied threatening or otherwise harassing them. M.B. also explained that he had abandoned the idea of buying the building as it would have entailed many legal disputes with the tenants.

16. On 22 December 2010 a fire broke out in the building where the applicant lived. The police attended at the scene and found that the fire had started in the premises of an abandoned retail store. The police recorded that there was no threat to people or particular damage to property. The fire was extinguished and no further action taken.

17. The next day, the tenants found a Zippo cigarette lighter at the scene which, according to the applicant, they immediately wanted to hand over to the police, but the police refused to accept it (see also paragraphs 20-21 below).

18. On 25 December 2010 the applicant informed the police that somebody was trying to break into the premises in which the fire had broken out few days earlier. The police attended at the scene but found nobody.

D. Incident of 4 January 2011

19. On 4 January 2011 a fire broke out in one of the flats (occupied by G.K.) in the applicant’s building.

20. Firefighters and the police immediately responded at the scene. They found traces of forced entry into the flat and a lighter of the same model as that found by the tenants following the fire of 22 December 2010 (see paragraphs 16-17 above). They also found that a pile of old clothes had burned in the living room. In the first interviews conducted with the tenants, one of them stated that G.K.’s former husband had threatened to move by force into the flat in question and had also harassed neighbours.

21. The next day, the police carried out an onsite inspection and seized a plastic bucket and clothes which they found in the flat. The police furthermore seized a lighter found at the scene and the lighter found by the tenants following the incident of 22 December 2010. The police also took samples from various objects in the flat. The seized material and samples were sent to the police forensic centre for further analysis.

22. On the same day, the police interviewed the applicant and her neighbours. They reported the following:

- the applicant argued that M.B. had often visited the building accompanied by several men and had exerted pressure on the tenants to move out of the building. He had offered to the applicant different amounts of money, and at one point one of his men had said that they would easily get rid of the tenants. The applicant knew that some of the tenants had accepted M.B.’s offers. She also heard that some other investors had been interested in the building but that they had changed their mind when they had realised that M.B. had decided to invest there;

- G.K. stated that she had had problems with M.B., who had threatened her since she had refused to move out of the building. She suspected that M.B. was behind the fire;

- T.Đ. explained how the tenants had big problems with the investor to whom the owner wanted to sell the house and who wanted to throw them out of the building. She furthermore stated that G.K.’s former husband had said that he would move into the above-mentioned flat (see paragraph 19). She also explained how, following the fire of 22 December 2010, she and her husband had found a lighter of the same type as the one found after the fire of 4 January 2011. This was confirmed by T.Đ.’s husband;

- LJ.O., who is T.Đ.’s mother, stated that at the time of the incident she had been in her flat when she had heard an explosion and smelled petrol, after which she had seen fire in G.K.’s flat. LJ.O. also stated that the tenants had been often visited by M.B., who had introduced himself as the representative of the owner and who had offered them money to leave the building;

- M.D. stated that around Christmas two men had knocked on her window but as she had not opened the door to them they had gone to see the applicant and said something to the effect that they had done what she (the applicant) had asked for and that the building was now on fire.

23. On 5 January 2011 the police lodged a criminal complaint with the State Attorney’s Office against an unknown perpetrator in relation to charges of endangering life and property through dangerous acts or means (arson).

24. On 11 January 2011 the applicant went to the police station as she wanted to add to her previous statement. The applicant stated that at the time of the 2005 incident she had had problems with her former husband. Moreover, in April or May 2010, M.B. had started coming to the building and talking to the tenants with a view to removing them from the building. He had offered to the applicant different amounts of money to move, but as she had refused he had threatened to move into her flat when she was absent. In December 2010 more men had come in a car to inspect the building. They had said that they represented a certain Ma.Be., who had become the owner of the building. Previously, the applicant had managed to get in touch with Ma.Be. and on that occasion he had stated that he would sell the building and that he did not care about the tenants. Then on 22 December 2010 several men had come with the same car that had been used by those who had come earlier to inspect the building. They had asked about a certain person and left. That evening the fire had broken out in the abandoned retail store.

25. According to the note of her interview, the applicant also stated that she had heard that a certain person, who at the time of the fire in G.K.’s flat had been carrying out some work there, had been dangerous and had participated in an incident of arson. She also stated that she had heard that a certain L.Č. had become the owner of the building and that a certain O.Č. was also associated with her[1].

26. On 17 January 2011 the applicant went to the State Attorney’s Office and alleged that L.Č. (who according to the applicant had become the owner of the building on 21 December 2010) and Ma.Be.[2] had been behind the fires on 22 December 2010 and 4 January 2011.

27. On 18 January 2011 the applicant informed the police that people, whom she considered to be behind the arson, were trying to break into the building. The police responded at the scene, where they found O.Č., his lawyer and a business associate.

28. In his interview with the police, O.Č. explained that a few months earlier (on 14 December 2010) his wife, L.Č., had bought the building from V.W-M. He also stated that he had started negotiating with the tenants through a lawyer about the possibility of their removal from the building. He denied threatening them or otherwise being associated with the arson. He refused to participate in a polygraph test, arguing that he had certain psychological problems and was under medication. Moreover, he could not prove his alibi for 4 January 2011.

29. The police also interviewed O.Č.’s lawyer and his business associate, who explained the circumstances of their business engagement with O.Č. They had no information concerning the arson. The applicant was also interviewed, and she repeated her earlier statement to the police and the State Attorney’s Office.

30. On 20 January 2011 a fire inspector produced a report according to which the fire on 4 January had been caused by an inflammatory liquid being first spread over the flat and then set on fire using an open flame.

31. In the period between September and November 2011 the police forensic centre produced reports which found that the material seized from the flat had contained traces of gasoline and that no fingerprint traces had been identified. However, a sample of male DNA had been identified on one of the objects. The DNA sample did not correspond to any of the samples stored in the centre’s database.

32. In September 2012 the police informed the State Attorney’s Office of the results of the investigation.

E. Subsequent developments

33. In the meantime, on 28 February 2011 the applicant signed a contract with L.Č., represented by her husband O.Č., under which she would move out of the house in exchange for EUR 6,000. She also accepted that she had received the amount in question and that she had no other claims towards L.Č. The applicant argued before the Court that she had signed the contract as a result of threats made by O.Č. According to the applicant, he had promised to pay her an additional EUR 40,000, which he had never done.

34. On an unspecified date in March 2011 the applicant and the other tenants moved out of the building, following which the building was demolished and a hotel was built on that location.

35. On 10 July 2011 O.Č. informed the police of a message which he had received from the applicant in which she suggested that O.Č. still owned her money and that she would ensure that he ended up in prison for trying to kill her. Two days later, the applicant called the police and asked them to be present while she took some of her belongings from the flat.

36. On 9 April 2013 the applicant reported to the police that during 2012, and again between March and April 2013, O.Č. had several times threatened her with violence.

37. On 20 April 2013 the applicant reported to the police that she had learned that a certain B.N. and D.V. had started the fire in the building where she lived. She also stated that she had talked to D.V., who had on that occasion said that they should have also spilled gasoline on the applicant and set her on fire and that it was not excluded that they would do so.

38. On 3 June 2013 the police interviewed O.Č., who argued that the applicant was harassing and threatening him in connection with an amount of money that she expected to receive for the flat. However, O.Č. considered that the payment had been settled and that he did not owe anything to her.

39. Meanwhile, in May, and then in October 2013, the applicant lodged further complaints against O.Č., alleging that he had threatened her in connection with the above-mentioned debt in respect of the flat.

40. On 9 November 2013 the police informed the State Attorney’s Office of the applicant’s complaints, and the State Attorney’s Office requested that a further interview be conducted with O.Č.

41. The police interviewed O.Č. on 15 January 2014. He denied making any threats against the applicant but argued that she had harassed and threatened him over the debt, which he considered did not exist.

42. After making a number of enquiries into the status of her case, on 6 October 2014 the applicant received a letter from the State Attorney’s Office indicating that O.Č. had been questioned and that he had denied all of the applicant’s allegations and that there was no evidence to refute his statement. The State Attorney’s Office also stressed that an investigation into the arson was still pending.

43. On 6 November 2014 the applicant received a letter from the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) reiterating the information provided by the State Attorney’s Office.

44. On 17 December 2014 the applicant was questioned by the police concerning her numerous complaints regarding the ineffectiveness of the investigation into her allegations of harassment and threats made by O.Č. On that occasion, she alleged that a number of other individuals were associated with O.Č. and the events leading to her forceful removal from her flat.

45. On 12 May 2015 the State Attorney’s Office rejected the applicant’s criminal complaints against O.Č. in relation to charges of threats on the grounds that there was no evidence to suggest that he had committed the offence in question. The applicant was instructed that she could take over the prosecution as a subsidiary prosecutor.

46. The investigation into the two instances of arson is still pending.

II. RELEVANT DOMESTIC LAW

47. The offence of endangering life and property through dangerous acts or means was, at the relevant time, proscribed under Article 263 of the 1997 Criminal Code (Official Gazette, no. 110/1997, with further amendments). The offence of making serious threat is proscribed under Article 139 of the 2011 Criminal Code (Official Gazette, no. 125/11, with further amendments).

48. The relevant domestic law on the functioning of criminal investigations and prosecutions is set out in the case of Remetin v. Croatia (no. 2), no. 7446/12, §§ 55-63, 24 July 2014.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

49. The applicant complained of the inadequate procedural response of the domestic authorities to her allegations of harassment, arson and threats by a private party. She relied on Articles 3 and 8 of the Convention.

50. The Court finds, being the master of the characterisation to be given in law to the facts of the case (see, for instance, Remetin v. Croatia (no. 2), no. 7446/12, §§ 55-63, 24 July 2014), that the applicant’s complaint falls to be examined under Article 8 of the Convention, which reads as follows:

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

2. 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.”

51. The Government contested that argument.

A. Admissibility

1. The parties’ arguments

52. The Government argued that the applicant’s complaints concerning the 2005 incident had been lodged with the Court out of the six-month time‑limit. They pointed out that a criminal complaint concerning that incident had been lodged on 18 January 2006 and that no further actions had been taken. However, the applicant had brought her complaints to the Court concerning that incident only on 19 January 2015. The Government also considered that the applicant had failed to exhaust the domestic remedies concerning O.Č.’s threats against her as she had not taken over the prosecution as a subsidiary prosecutor following the rejection of her criminal complaint by the State Attorney’s Office on 12 May 2015.

53. As regards compliance with the six-month time-limit concerning the 2005 incident, the applicant argued that she had considered that the matter was still under investigation in the context of the investigations into the other incidents that had occurred later. With regard to the exhaustion of domestic remedies, the applicant submitted that ever since 2010 she had diligently and actively participated in the criminal investigations concerning the incidents in her building. In her view, as a victim of violence, she had had no duty to take over the prosecution against the suspected perpetrator since the obligation to investigate and prosecute effectively the acts of violence by private parties was an obligation incumbent on the State authorities.

2. The Court’s assessment

54. As to the Government’s objection relating to the applicant’s failure to comply with the six-month time-limit concerning the 2005 incident, the Court considers that whereas it is true that the circumstances concerning the alleged harassment, arson and threats to which the applicant was subjected need to be examined as a whole, the incident of 22 December 2005 is sufficiently distinct in time and the prevailing circumstances that it cannot be examined in the context of the succession of events starting in November 2010. This is particularly true in view of the fact that it follows from a note regarding the applicant’s police interview of 11 January 2011 (the authenticity and credibility of which the Court sees no reason to put into doubt) that the incident of 22 December 2005 was linked to the applicant’s problem with her husband. On the other hand, the events that started in November 2010 (namely some five years later) related to the alleged forceful attempts to remove her from the flat (see paragraph 24 above).

55. In these circumstances, noting the fact that the last procedural action concerning the 2005 incident was taken in January 2006 and that the applicant brought her case to the Court some nine years later without any meaningful developments concerning that incident having taken place at the domestic level, the Court finds that the applicant failed to comply with the six-month time-limit, as required under the Court’s case-law (see, for instance, Vuletić v. Croatia (dec.), no. 19256/13, §§ 21-25 23 June 2015). It follows that the applicant’s complaint concerning the 2005 incident must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention.

56. As to the Government’s objection of non-exhaustion of domestic remedies, the Court notes that in connection with the alleged harassment, arson and threats the applicant lodged several criminal complaints. She in particular lodged a criminal complaint against O.Č. in relation to charges of making serious threats. There is nothing to indicate that the ensuing proceedings were in principle not capable of complying with the State’s procedural obligation.

57. In the Court’s view, by virtue of that remedy the State was afforded an opportunity to put matters right. The applicant must therefore be regarded as having brought the substance of her complaint to the notice of the national authorities and as having sought redress through the domestic channels for her complaint. Thus, from the perspective of the duty to exhaust the domestic remedies, she was not required in addition to pursue the matter by instituting substitute prosecution proceedings, which would have had the same objective as her criminal complaint (see R.B. v. Hungary, no. 64602/12, §§ 61-62, 12 April 2016).

58. It is true that in some instances of private violence when an applicant has availed himself or herself of the possibility to pursue the private prosecution of his or her attacker, the Court must examine the effectiveness and the manner in which such a criminal-law mechanism was implemented. However, the Court has never held that an applicant is obliged to use that avenue in order to exhaust the domestic remedies since it is primarily for the prosecuting authorities to investigate and prosecute attacks on a person’s physical and psychological integrity (see, in this context, Remetin (no. 2), cited above, § 112). In any event, given the seriousness of the applicant’s allegations and the apparently orchestrated attempts to intimidate her and the other tenants of the building, the Court is not convinced that a private prosecution would have been an effective avenue for the applicant’s complaints.

59. In view of the above, the Court rejects the Government’s objection of non-exhaustion of domestic remedies. The Court furthermore notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

60. The applicant contended that the relevant domestic authorities, namely the police and the State Attorney’s Office, had never taken seriously her allegations of harassment and threats and violence by private parties and had never approached the matter as a whole trying to understand the general context of these events and their background. The domestic authorities had rather treated these events as isolated incidents, which had been insufficient to address the matter effectively. In the applicant’s view, the procedural response of the domestic authorities into her complaints had not been effective and thorough.

61. The Government stressed that the domestic authorities had acted properly and diligently in respect of all the incidents in the applicant’s building. In particular, the police had always reacted promptly to any call by the applicant and the other neighbours, they had commissioned different expert reports and interviewed a number of witnesses, and every incident had been examined individually and in the context of the overall situation. At the same time, the applicant’s statements had been inconsistent, but the police had nevertheless pursued all the relevant leads which she had brought to their attention. The fact that the investigation into the arson incidents (only one of which appeared to be the result of the commission of a criminal offence, which had happened in the flat of another private individual, G.K.) was still pending did not suggest a breach of the domestic authorities’ procedural obligation, which was an obligation of means and not of results.

2. The Court’s assessment

(a) General principles

62. The Court refers to the general principles under Article 8 of the Convention concerning the instances of private violence set out in the cases of Sandra Janković v. Croatia (no. 38478/05, §§ 44-47, 5 March 2009) and Isaković Vidović v. Serbia (no. 41694/07, §§ 58-61, 1 July 2014).

63. Moreover, the Court would stress that where an individual makes a credible assertion of having been subjected to repeated acts of harassment, however trivial the isolated incidents might be, it falls on the domestic authorities to assess the situation in its entirety, including the risk that similar incidents would continue. This assessment should, above all, take due account of the psychological effect that the risk of repeated harassment, intimidation and violence may have on the victim’s everyday life. Where it is established that a particular individual has been systematically targeted and future abuse is likely to follow, apart from responses to specific incidents, the authorities may be called upon to implement an appropriate action of a general nature to combat the underlying problem (see Irina Smirnova v. Ukraine, no. 1870/05, § 71, 13 October 2016, with further references).

(b) Application of these principles to the present case

64. The Court notes that the applicant alleged that she had been subjected to repeated instances of threats and harassment and that two instances of arson in the building – which had put at risk the physical and mental integrity of the applicant and the other tenants, as well as their property – had been aimed at intimidating her and the other neighbours into moving out of their flats (see paragraphs 14, 16, 22, 24, 26-27, 37, 39 and 44). The Court considers that alleged acts of violence such as those require the States to adopt adequate positive measures in the sphere of criminal-law protection (compare Sandra Janković, cited above, § 47).

65. As to the criminal-law mechanisms provided under the Croatian legal system, the Court notes that the offences alleged by the applicant are proscribed under the relevant Criminal Code. Moreover, the domestic legal system provides for effective procedural mechanisms to pursue the violent acts alleged by the applicant (see paragraphs 47-48 above, with further references).

66. The Court will next examine whether the manner in which the criminal-law mechanisms were implemented in the instant case were defective to the point of constituting a violation of the respondent State’s procedural obligations under Article 8 of the Convention (see, for the relevant test, Remetin (no. 2), cited above, § 103). In particular, in view of the nature of the applicant’s complaint, it will have regard to the question of whether the authorities assessed the impugned situation in its entirety and whether they implemented an appropriate action of a general nature to combat the underlying problem (see paragraph 63 above).

67. At the outset, the Court would stress that it is not convinced that the domestic authorities effectively and comprehensively approached the applicant’s case. It notes, for instance, that following the applicant’s and her neighbour’s suggestion in November 2010 that M.B. had exerted pressure and threatened them with the aim of removing them from the building, the police took no measures to ascertain whether the other neighbours had had the same experience. However, after the arson of 4 January 2011, a number of the applicant’s neighbours mentioned M.B. to the police as somebody potentially involved in the event (see paragraphs 15 and 22 above).

68. Moreover, it would appear that there was no serious attempt to investigate the event of 22 December 2010. Thus, the police took no measures to ascertain the circumstances of the event (see paragraph 16 above), such as conducting an onsite inspection. It was the tenants who found the evidence at the scene, namely a lighter of the same type as that used for the arson of 4 January 2011 (see paragraphs 17 and 21-22 above), which arguably linked the two events.

69. Furthermore, the Court notes that at a later stage the applicant explicitly suggested the names of different people who had been involved in the events (see paragraphs 24, 26, 37 and 44 above). She also stated that different men had come to inspect the building, but that they had always used the same car and that their last visit had happened on the day when the fire had broken out in December 2010 (see paragraph 24 above).

70. However, there is no indication that the police ever attempted to follow up these leads. Thus, for instance, the identity of the men who visited the building remains unknown, as no specific action was taken to identify them. Although DNA traces were found at the scene (see paragraph 31 above), no initiative was taken to compare them against the DNA samples of some of the people explicitly mentioned or suggested to be behind the arson. This in particular concerns (i) D.V. (see paragraph 37 above) and (ii) O.Č., who notably refused to submit to a polygraph test and could not give an alibi for 4 January 2011, when the fire broke out in the building (see paragraph 28 above). It should also be noted that there is no indication that the other tenants in the building were interviewed in connection with the applicant’s explicit allegations against certain people, notably B.N. and D.V., concerning their involvement in that event.

71. The Court would also stress that the examination of the applicant’s complaints of threats having been made against O.Č. was undertaken and processed by the State Attorney’s Office as an isolated event (see paragraph 45 above), rather than in the context of the entire situation, as impugned by the applicant. This, in the Court’s view, also suggests that the domestic authorities failed to recognise and address the underlying problem of the complaints made by the applicant.

72. It should also be noted that more than seven years after the instances of arson in the applicant’s building and the various instances of threats and harassment, an investigation into those events is still pending, without any meaningful progress having been made. In such circumstances, the Court concludes that the authorities have failed to comply with the requirement of promptness implicit in the procedural obligation to prosecute acts of violence under the Convention (see Remetin (no. 2), cited above, § 120).

73. Accordingly, all the above circumstances render it sufficient for the Court to conclude that the domestic authorities failed in their obligation to effectively and expeditiously respond to the allegations by the applicant of harassment, arson and threats. The Court thus finds that in the circumstances of the present case the manner in which the criminal-law mechanisms were implemented was defective to the point of constituting a violation of the respondent State’s procedural obligations under Article 8 of the Convention.

74. There has accordingly been a violation of Article 8 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

75. The applicant also invoked Article 2 of the Convention, complaining of the inadequate procedural response of the domestic authorities to her allegations of harassment.

76. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded, and must be rejected, pursuant to Article 35 § 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

77. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

78. The applicant claimed EUR 15,000 in respect of non-pecuniary damage.

79. The Government contested the claim.

80. The Court considers that the applicant must have sustained non‑pecuniary damage, which cannot be sufficiently compensated for only by the finding of a violation. Ruling on an equitable basis, it awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.

B. Costs and expenses

81. The applicant also claimed 13,500 Croatian kunas (approximately EUR 1,820) for the costs and expenses of her legal representation.

82. The Government contested that claim.

83. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in its possession and the above-mentioned criteria, as well as the sum which has been paid to the applicant’s lawyer in respect of the granted legal aid (EUR 850), the Court considers it reasonable to award the sum of EUR 970, plus any tax that may be chargeable to the applicant, in respect of his costs and expenses incurred before the domestic authorities and before the Court.

C. Default interest

84. The Court considers it appropriate that the default interest rate 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 applicant’s complaints concerning the 2010 and 2011 incidents and the subsequent events under Article 8 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

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 970 (nine hundred 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;

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

Done in English, and notified in writing on 4 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Renata DegenerKristina Pardalos
Deputy RegistrarPresident

[1]. Rectified on 22 January 2019: the word „him“ was replaced by „her“.

[2]. Rectified on 22 January 2019: the initials „Me.Be.“ were replaced by „Ma.Be.“.

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