Communicated on 6 October 2015
SECOND SECTION
Application no. 4955/15
M.M.
against Croatia
lodged on 8 January 2015
STATEMENT OF FACTS
1. The applicant, Mr M.M., is a Croatian national, who was born in 1958 and lives in Z. He is represented before the Court by Ms L. Horvat, a lawyer practising in Zagreb.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant’s son, L., suffers from Crohn’s disease and has been treated with corticosteroid therapy. He also took various illegal drugs.
4. In the night of 28 to 29 February the applicant called the police asking for an intervention because L. behaved strangely and the applicant thought that L. was in need of urgent psychiatric help. Police officers M.R. and D.P. soon arrived, but decided not to call an ambulance.
5. The next morning, on 29 March 2013, L. killed his mother and grandmother. Criminal proceedings were instituted against him on charges of two aggravated murders. A psychiatric report, commissioned for the purposes of these criminal proceedings, established that he suffered from paranoid schizophrenia. He was placed in a psychiatric institution.
6. During these proceedings the applicant gave his oral evidence and stated that on 28 March 2013 at about 11.00 p.m. he had called the police on account of the strange behaviour of his son L. Soon thereafter the applicant had met two police officers about a hundred metres from his home since he had not wanted to upset his son by the presence of the police. The applicant had told the officers that his son had taken some drugs and should be taken to a psychiatrist. However, one of the officers had replied that only addicts in a grave condition were taken to psychiatric institutions. To a question of the officers the applicant had said that his son had not been violent but that “there had been shouting” and that his son had broken a window the day before. The applicant had expected an ambulance to arrive, which had not happened, and since his son had fallen asleep he had told the police officers not to wake him up, after which they had concluded that there was no need for their intervention.
7. On an unspecified date the applicant lodged a criminal complaint against police officers M.R. and D.P. as well as against the Head of Z. Police, N.P., on charges of the abuse of their office and authority. He alleged that they had not properly reacted to his reporting that his son had grave mental problems and had been using drugs. The officers had dissuaded the applicant from calling emergency and placing his son in a psychiatric institution, claiming that such placement was reserved for cases of grave abuse of drugs and persons in a coma.
8. On 2 February 2015 the State Attorney’s Office dismissed the complaint on the ground that there was no indication that the police officers had committed the criminal offence at issue or had not fulfilled their duties.
9. On 27 September 2013 the applicant lodged a request for securing evidence with the Z. Municipal Court. He sought that a record of his telephone call of 28 March 2013 to the police be secured in order to assess whether he had sufficient grounds to lodge a claim against the State for the alleged failure of the police to ensure the right to life of his wife and mother.
10. On 2 October 2013 the Z. Municipal Court accepted the applicant’s request and obtained the record of the said telephone call. However, it refused to make a copy for the applicant on the ground that the applicant would be able to ask for it in the civil proceedings. The applicant’s representative was informed of this refusal by a letter of the President of the Z. Municipal Court, served on her on 11 July 2014.
B. Relevant domestic law
1. Constitution of the Republic of Croatia
11. 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) in Article 21, under Head III – Protection of Human Rights and Fundamental Freedoms, Part 2 – Personal and Political Rights and Freedoms, provides:
“Every human being has the right to life.
...”
2. Constitutional Court Act
12. The relevant part of section 62 of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/1999, 29/2002, 49/2002) reads:
“1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision of a state body, a body of local and regional self-government, or a legal person with public authority concerning his or her rights and obligations, or about a suspicion or an accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: a constitutional right) ...
2. If another legal remedy exists against the violation of the constitutional right [complained of], the constitutional complaint may be lodged only after that remedy has been exhausted.
3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law is allowed, remedies shall be considered to have been exhausted only after a decision on these legal remedies has been given.”
3. State Administration Act (Zakon o sustavu državne uprave, Official Gazette nos. 150/2011 and 12/2013)
13. Section 14 of this Act reads:
“The Republic of Croatia shall compensate damage caused to a citizen, legal entity or other party, by unlawful or incorrect work of a state administration body, body of local (regional) self-governance, or a legal entity with public auhtority, [carried out in the context of] the tasks of state adminsitration conferred on them.”
4. Civil Obligations Act
14. The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/1991, 73/1991 and 3/1994) provided:
DAMAGES
Section 200
“(1) For any physical or mental pain concerning the ... death of a close person ... the court shall, if appropriate under the circumstances of a given case, and in particular if the intensity of the pain or fear and their duration so require, award non-pecuniary damages ... “
PERSON WHO CAN CLAIM DAMAGES
Section 201
“(1) In the event of the death of a person the court can award an appropriate non-pecuniary damage to the members of his or her immediate family (spouse, child, a parent).
... “
5. Health Care Act
15. The relevant part of section 23 of the Health Care Act (Zakon o zdravstvenoj zaštiti, Official Gazette, nos. 150/2008, 71/2010, 139/2010, 22/2011, 84/2011, 12/2012, 70/2012, 82/2013 and 159/2013) provides:
“Anyone has a right to direct a verbal or written complaint to the director of a health care institution ... concerning the quality, substance and the type of health care provided.
The director ... shall immediately take [the] necessary measures and he shall inform the complainant about the measures that were taken by letter and within a period of three days.
If the complainant is not satisfied with the measures that were taken, he can seek [to assert] his rights before the competent bar association, the Ministry of Health or the competent court.”
COMPLAINTS
16. The applicant complains under Article 2 of the Convention taken alone and in conjunction with Article 13 that the State did not satisfy its positive obligation to protect the lives of his wife and mother.
17. He further complains under Article 6 § 1 of the Convention that his right of access to court was unduly restricted because of the refusal of the Z. Municipal Court to provide him with the evidence he requested.
QUESTIONS TO THE PARTIES
1. Has the applicant’s relatives’ right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, did the State authorities know or ought to have known that there was a risk for the lives of the applicants’ relatives (see Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998‑VIII)? Has the applicant exhausted all effective domestic remedies in this respect?
2. Having regard to the procedural protection of the right to life under Article 2, did the applicant have adequate access to relevant evidence?
3. Has the applicant’s right of access to court been unduly restricted, contrary to Article 6 § 1 of the Convention, because of the refusal of the Z. Municipal Court to provide him with the evidence he requested?
4. Does the applicant have at his disposal an effective domestic remedy for his complaints under Article 2, as required by Article 13 of the Convention?
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