FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 40116/02
by Šemso and Ševko ŠEČIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 15 June 2006 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrsN. Vajić,
MrA. Kovler,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having regard to the above application lodged on 12 November 2002,
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
The applicants, Mr Šemso Šečić and Mr Ševko Šečić, are Croatian citizens of Roma ethnic origin, who were born in 1963 and 1983 respectively and live in Zagreb. They are represented before the Court by the European Roma Rights Center (ERRC), an international public interest law organisation with its seat in Budapest and Mrs Lovorka Kušan, a lawyer practising in Ivanić-Grad. The respondent Government were represented by their Agents, first Mrs L. Lukina-Karajković and subsequently, Mrs Š. Stažnik.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Events concerning the first applicant
On 29 April 1999 between 8.00 and 8.30 p.m. the first applicant, together with several other individuals, was collecting old metal in Harambašićeva Street in Zagreb.
Suddenly, two unidentified men approached the group and attacked the first applicant. They beat him all over his body with wooden planks shouting racial abuse. Another two unidentified men, apparently members of the same group, stood close by and kept watch.
Shortly afterwards, following a report by an unknown person about the ongoing fight, a police patrol was sent to the scene. The police interviewed the persons on the spot and went around the nearby streets attempting to find the attackers.
An ambulance arrived and took the first applicant to the nearby hospital. The physicians concluded that no bones had been broken, provided the first applicant with painkillers and sent him home to rest.
During the night the first applicant experienced severe pain and the next day he went to another hospital where he was again examined. It was found that, as a result of the assault, he had sustained multiple rib fractures, in particular of the ninth, the tenth and the eleventh left-side rib. It was necessary to keep him in hospital for further treatment. He was released a week later, on 5 May 1999.
The first applicant submits that ever since 1 June 1999 he has been under psychiatric treatment as a result of the incident. He attended the Zagreb Psychiatric Clinic on at least eighteen occasions. He was diagnosed with post-traumatic stress disorder characterised by depression, anxiety, panic attacks, fears for his own safety and that of his family, intermittent insomnia and nightmares and, in general, an emotional breakdown.
On 15 July 1999 the applicants’ lawyer filed a criminal complaint with the Zagreb Municipality State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu; “the State Attorney’s Office”) against unknown individuals. She gave a factual account of the incident and alleged that the first applicant had been gravely injured. As evidence the first applicant offered his own testimony and proposed that three eye witnesses be heard. The applicant requested the State Attorney’s Office to investigate the incident, identify the perpetrators and institute criminal proceedings against them.
On the same day the applicants’ lawyer sent a letter to the Zagreb Police Department (Policijska uprava Zagrebačka; “the police”) in which she informed the police about the incident and requested to be given by the police the information necessary for the institution of criminal proceedings. She repeated her request on 30 August 1999.
On 31 August 1999 the police informed the applicants’ lawyer that the perpetrators had not been identified.
On 2 September 1999 the applicants’ lawyer wrote to the Minister of the Interior (ministar unutarnjih poslova) informing him about the incident and stating that the police had not identified the perpetrators. She requested decisive police action, relying on the relevant domestic and international human rights standards.
On 29 September 1999 the police interviewed the applicant about the events of the evening of 29 April 1999. The applicant vaguely described the two attackers, stating that due to his short-sightedness he was not likely to be able to recognise them.
On the same date, the police interviewed B.T., who had been with the first applicant on the critical date. He also described the attackers, stating that he had not seen their faces well because he had been hiding from them during the attack.
On 4 October 1999 the police interviewed N.C., who lives in the area where the attack had taken place and who had witnessed the incident. He described the attackers, stating that everything having occurred very fast, he was not able to see them clearly.
On 7 October 1999 the police interviewed Z.B., another eye witness to the incident, who gave a statement similar to those of the previously interviewed witnesses.
On two occasions in January 2000 the applicants’ lawyer enquired with the State Attorney’s Office about the steps taken in order to identify and prosecute the perpetrators, at the same time complaining about the inadequacy of the investigation.
On 10 February 2000 the State Attorney’s Office informed the applicants’ lawyer that they had urged the police to speed up the investigation.
On 21 February 2000 the State Attorney’s Office informed the applicants’ lawyer that the police had carried out an on-the-spot investigation immediately after having been informed of the incident, that they had interviewed the first applicant and several other witnesses, and had searched the area but had not identified any person fitting the description of the perpetrators.
On 16 March 2000 the applicants’ lawyer informed the State Attorney’s Office that the individuals who had attacked the first applicant had apparently been engaged in numerous attacks against Roma persons in Zagreb in the same period. Two of the Roma attacked, I.S. and O.D., had told the applicants’ lawyer that they would be able to identify the perpetrators and that O.D. had personally witnessed the attack on the first applicant. Furthermore, the police had already identified and apprehended O.D.’s attackers. She stressed that all the incidents had been racially motivated because the attackers combined physical with racist verbal abuse.
On 23 March 2000 the State Attorney’s Office informed the applicants’ lawyer that it had ordered the police to investigate further the case along the lines set out in her letter of 16 March 2000.
On 16 June 2000 the State Attorney’s Office informed the applicants’ lawyer that the police had been unsuccessful in finding O.D. and that they had no record of any assault on him.
On 1 August 2000 O.D. was located and interviewed at the Beli Manastir Municipality State Attorney’s Office (Općinsko državno odvjetništvo u Belom Manastiru). He stated that he himself had been attacked by a certain S. sometime in January 2000 and that the same person had been one of the attackers on the first applicant. He remembered the person S., because he had a large scar on his face.
The police subsequently identified S. an alcoholic, well-known to the local authorities for several criminal offences. However, the police eliminated him as a possible suspect because no other witness identified him despite of his very noticeable scar. Also, pursuant to the information available to the authorities, S. had not belonged to any skinhead group. Nothing in the police case-file indicates that S. was summoned for questioning regarding the incident.
Meanwhile, on 24 May 2000 the applicants’ lawyer again wrote to the State Attorney’s Office indicating that the Croatian Radio Television (HRT) broadcasted a reportage on 14 May 2000, in which a young member of the skinheads was interviewed, explaining his reasons for engaging in attacks on the Roma population in Zagreb. She claimed that the interviewed individual had implicitly mentioned the incident involving the first applicant of 29 April 1999.
The State Attorney’s Office requested the editor of HRT to give them the necessary information in order to identify the person interviewed.
On 18 April 2001 the police interviewed the journalist who made the interview. The journalist stated that the interviewed member of the skinheads had talked generally about his hatred towards the Roma population, but that he did not specifically address the incident at issue. He lived in the same part of town where the attack took place and had described how annoying he found when Roma came to his neighbourhood to collect old metal. However, the journalist did not wish to disclose the name of the person interviewed relying on his right to protect the source of his information.
Meanwhile, on 14 February 2001 the applicants’ lawyer again complained to the State Attorney’s Office and to the Minister of the Interior about the poor quality and the unacceptable duration of the investigation. She requested an update and complained that there appeared to be no real efforts on the part of the relevant authorities to identify and apprehend the perpetrators. She also informed the prosecuting authorities about some new facts, namely that the persons who had attacked the first applicant belonged to a skinhead group, whose members were responsible for numerous attacks on the Roma population in Zagreb. She further described several recent attacks on the Roma population by skinheads and listed names and addresses both of victims and witnesses of such attacks.
On 22 May 2001 the Ministry of the Interior informed the applicants’ lawyer that the police had undertaken appropriate steps on receipt of all the information provided by her.
On 6 April 2001 the first applicant filed a constitutional complaint with the Constitutional Court requesting it to order the State Attorney’s Office to take all necessary steps in order to complete the investigation as soon as possible and no later than within six months.
On 12 November 2002 the Constitutional Court informed the applicants’ lawyer that it had no competence to rule on cases involving prosecutorial inaction during the pre-trial stage of proceedings and took no formal decision on the complaint.
The proceedings are still pending at the pre-trial stage.
2. Events concerning the second applicant
On 24 January 2001, at the age of 17, the second applicant was having drinks with his friends in the café “Cool” between 8 and 10 pm. He stated to have had five beers. After his friends left, an unknown man, visibly intoxicated, approached the second applicant asking whether he was of Roma origin after which the two had a dispute.
The second applicant walked out of the café, but was followed by the man who had approached him together with several other individuals. They told him to stop, but the applicant, in fear for his safety, started to run. The men started shouting and running after him, but they gave up after about 30 metres. The second applicant managed to escape.
When he returned home, he told his father, the first applicant, what had happened, but neither of them thought it would be necessary to inform the police of the incident. The second applicant later stated that he did not consider the incident significant and that the situation was probably caused by those men’s intoxication rather than the fact that he was of Roma origin.
Several months later, when the first applicant’s lawyer came to their home concerning the first applicant’s case, she learned about the incident and suggested to the second applicant that he should also file a criminal complaint.
On 26 April 2001 the applicants’ lawyer filed a criminal complaint with the State Attorney’s Office.
On 7 May 2004 the police interviewed both applicants. It transpired from their statements that one of the individuals who had the verbal dispute with the second applicant was S., the person identified by O.D. as one of the possible attackers on the first applicant.
The police attempted to summon S. on two occasions, but without success.
The proceedings are still pending at the pre-trial stage.
B. Relevant domestic law
Section 1 (2) of the Media Act (Zakon o medijima, Official Gazette no. 59/2004 of 10 May 2004) provides that its provisions shall be applied and interpreted in conformity with the Convention.
The relevant part of section 30 of the Media Act (which has existed in the Croatian legal system as former section 28 (6) of the 2003 Media Act (Official Gazette no. 163/2003 of 16 October 2003)), reads as follows:
“1. A journalist shall not be obliged to reveal the source of published information or the information he intends to publish.
...
4. The State Attorney’s Office may, if such a limitation is necessary in the interests of national security, territorial integrity or the protection of health, submit a request to the competent court to have a journalist ordered to reveal the source of published information or the information he intends to publish.
...
6. The court may order a journalist to reveal the source of published information or the information he intends to publish, if that is necessary for the protection of public interest and involves extremely significant and serious circumstances, whereby it is indisputably established:
- that there is no reasonable alternative measure substituting for the revealing the source of information or that the authority indicated in paragraph 4 of this section, which seeks that the source be revealed, already used that measure and
- that the law-based public interest for the revealing the source of information clearly prevails over the public interest to protect the source of information.”
COMPLAINTS
1. The applicants complain under Article 3 of the Convention that the domestic authorities failed to undertake a serious and thorough investigation of their allegations concerning the attacks on them.
2. The applicants alternatively complain that the abuse they suffered and the absence of an appropriate redress to the ill-treatment amount to a violation of their right to respect for their private lives as laid down in Article 8 taken alone and in conjunction with Articles 13 and 14 of the Convention.
3. The applicants also complain under Article 13 of the Convention that they had no effective remedy at their disposal in respect of their complaint under Article 3.
4. Lastly, the applicants complain under Article 14 of the Convention that they were discriminated against on the basis of their Roma origin. In particular, they allege that there existed a high degree of tolerance of the domestic authorities of violence against the Roma population, indicated by the unwillingness of the prosecuting authorities to undertake any meaningful steps in order to identify or prosecute the perpetrators of the violent acts against them.
THE LAW
The applicants complain that the investigations carried out by the Croatian authorities following both incidents have been unreasonably delayed and ineffective, in breach of Articles 3 and, alternatively, Article 8 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 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.”
The applicants also claim that they have no effective remedy at their disposal in order to speed up the investigations or to identify the perpetrators, as required by Article 13 of the Convention, which reads as follows:
“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.”
Finally, the applicants complain that their ill-treatment and the subsequent proceedings conducted by the authorities show that they were discriminated against on account of their ethnic origin, contrary to Article 14 of the Convention, which reads as follows:
“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. Exhaustion of domestic remedies
The Government consider the application premature claiming that the domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention. They stress that the investigations concerning both the first and the second applicant’s complaints are still pending in the pre-trial phase. Until the competent State Attorney’s office dismisses their criminal complaints, it cannot be claimed that the domestic authorities have abandoned the case. Furthermore, had the applicants been dissatisfied with the conduct of the investigations, they could have lodged criminal complaints against the officials whose actions had allegedly violated their rights.
The applicants maintain that the investigations in their cases have now been pending for seven and five years, respectively. The Government have not provided any compelling reasons for such a delay or their failure to identify the attackers. Instead, they claim that the proceedings are pending and that they are still in the pre-trial phase. The applicants claim to have undertaken all possible steps in order to expedite the proceedings. They filed numerous appeals submitting additional information and leads in the case to different authorities, including a constitutional complaint to the Constitutional Court. In light of the foregoing, the applicants assert to have exhausted all available domestic remedies.
The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, no. 21987/93, §§ 51-52, ECHR 1996-VI, and Akdivar and Others v. Turkey, no. 21893/93, §§ 65-67, ECHR 1996-IV).
The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Akdivar and Others, cited above, § 69, and Aksoy, cited above, §§ 53 -54).
In the instant case, the Court observes that the respective criminal investigations began in 1999 and 2001. However, to date no charges have been brought concerning either of the complaints, nor have the proceedings moved on from the pre-trial phase. The applicants were constantly enquiring about the state of the investigation, giving additional leads to the competent authorities in attempts to speed up the proceedings. They also addressed the competent Ministry and lodged a constitutional complaint.
The Court is aware of the subsidiary nature of its role and that it must be cautious in taking on the role of a first instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Indeed, the object and purpose underlying the Convention, as set out in Article 1 - that rights and freedoms should be secured by the Contracting State within its jurisdiction - would be undermined if applicants were not encouraged to pursue the means at their disposal within the State to obtain available redress.
Nonetheless, what is at issue in the present case is whether the investigations concerning the applicants’ complaints are capable of satisfying the requirements of the procedural obligation, having regard to the apparent delays in the undertaking of procedural activities. The Court considers these matters closely related to the merits of the complaints.
Accordingly, the Court does not consider it appropriate to examine this issue in the context of the exhaustion of domestic remedies, but joins it to the merits (see, mutatis mutandis, Hugh Jordan v. the United Kingdom (dec.), no. 24746/94, 4 April 2000; McShane v. the United Kingdom (dec.), no. 43290/98, 12 December 2000).
A. Complaints under Article 3 of the Convention
1. The Government’s submissions
a. The first applicant
The Government claim that the ill-treatment to which the first applicant had been exposed did not attain the level of severity which would justify the application of Article 3 of the Convention. In this connection, the Government cannot assess to what extent the first applicant’s mental suffering following the incident had been caused by the attack itself or existed before. Furthermore, they stress that the incident was caused by unknown individuals and not by representatives of the authorities.
In respect of the investigation following the incident, the Government firstly contend that the positive obligation of the State in cases when the ill-treatment had been caused by third persons goes only so far as the State is expected to prevent such acts, of which its bodies are or should be aware.
Furthermore, the Government point out that the police intervened immediately after having been informed about the attack on the first applicant. The subsequent investigation was, however, significantly hindered from the very outset because neither the first applicant nor the persons who had witnessed the attack could give a sufficiently detailed description of the attackers. Moreover, the first applicant admitted not to be able to recognise the attackers even if he was to see them again. During the investigation the police had interviewed all the potential witnesses of the incident including persons living in the area and a waitress working in a nearby café. All actions were undertaken in the shortest possible period of time.
It is true that witness O.D. had identified a certain S. as one of the attackers. However, none of the other witnesses having confirmed this allegation - despite his large and visible scar on the face and the fact that he was well-known to the police, although not as a member of a skinhead group - the police excluded him from the list of possible suspects.
As to the interviewed journalist, the Government submit that he had the right not to reveal his source of information and that, under the law in force at the time of the interview, he could not have been ordered to do so.
In conclusion, the Government deem that the investigation in respect of this incident did not constitute a violation of Article 3.
b. The second applicant
As regards the second applicant, the Government claim that verbal insults lasting only several minutes cannot be interpreted as ill-treatment contrary to Article 3. They admit that at the time of the incident the second applicant had been a minor, but not a child. His age does therefore not give any extra weight to the attack.
With regard to the investigation following the verbal attack on the second applicant, the Government point out that he had never reported the incident to the police. Instead, he lodged a criminal complaint only three months after the alleged incident took place. The Government deem that this delay not only called into question the seriousness of the second applicant’s complaint, but also considerably hindered the establishment of facts and the subsequent criminal investigation. Bearing in mind that the attack was merely a verbal one, the Government admit that the second applicant’s complaint was not given priority.
2. The applicants’ submissions
a. The first applicant
The first applicant maintains that the criminal investigation in his case has now been pending for seven years. He argues that the State has the obligation to protect everyone under its jurisdiction from ill-treatment contrary to Article 3, even if such ill-treatment is inflicted by private individuals. Having suffered severe bodily injuries and mental harm following the attack, the treatment inflicted on him attained the minimum of severity necessary for the application of Article 3.
As regards the investigation following the incident, the first applicant maintains that the police failed to investigate the attack properly. He stresses that his lawyer urged not only the police, but also the State Attorney’s Office and the Ministry of the Interior to speed up the investigation and apprehend the attackers.
Moreover, the first applicant considers the Government’s explanation as to the prolonged character of the investigations contradictory and unsatisfactory. In particular, the police firstly stated that he had given a detailed description of the attackers, while they later claimed the contrary.
The first applicant further submits that he had not been informed about several omissions committed by the police, in particular, of the reasons why the police never pursued investigating the person identified by O.D. as one of the possible attackers. It appears from the documents submitted that the identified individual, known as S., had a criminal record, whereas in respect of the attack on the first applicant he was not even interrogated.
Moreover, it is also clear from the police file that they never undertook any other action except interviewing the first applicant and several eye witnesses proposed by his lawyer. In this respect the first applicant points out that Croatian law provides for many other standard police methods, such as interviewing persons identified as belonging to skinhead groups, possibly also suspects in other similar incidents, polygraph testing, undercover investigation measures etc.
The police further failed to request the competent court to order the journalist conducting the interview with a skinhead aired on national television on 14 May 2001, to reveal his source of information, even though they had no other leads in the case. In this connection, the first applicant observes that such a possibility has lain open ever since the Media Act came into force, but that the domestic authorities nonetheless never used it. Furthermore, such an order would not have been contrary to freedom of expression guaranteed under the Convention, since in the present case the general interest in prevention of crime against ethnic minorities prevails over the protection of the source of information.
For these reasons, the investigation did not meet the standards set out in the Court’s case-law with respect to Article 3 of the Convention. Moreover, by failing to identify any suspect or to give a formal decision terminating the proceedings, the State disabled the first applicant from obtaining redress either ex officio or in the capacity of a private (subsidiary) prosecutor.
b. The second applicant
The second applicant maintains that the treatment inflicted on him constitutes a treatment which falls under the scope of Article 3 of the Convention. Whilst it is true that he was only verbally insulted and chased in a public place, he had also suffered degrading treatment because at the time of the attack he was 17 years old and thus a particularly vulnerable person.
With regard to the subsequent investigation, the second applicant claims that the police have failed to perform any procedural activities, even though he was able to recognise one of his attackers.
2. The Court’s assessment
a. Concerning the first applicant
The Court considers that the first applicant’s complaint under Article 3 of the Convention raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This complaint cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring it inadmissible have been established.
b. Concerning the second applicant
The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001‑VII). Before the Court, allegations of ill-treatment must be supported by appropriate evidence, to the standard of proof “beyond reasonable doubt” (see Labita v. Italy, no. 26772/95, § 121, ECHR 2000-IV), but such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.
In the instant case, the Court observes that the second applicant was verbally insulted and chased in the street for about 30 metres. He adduced no evidence of any severe or long-lasting effects as a result of the treatment complained of.
The Court notes that treatment which does not produce such effects may fall within the ambit of Article 3 if it may be said to have reached the minimum threshold of severity. The Court is not convinced that it was so in the instant case, although it is aware of the second applicant’s young age.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Complaints under Article 8 of the Convention
1. The Government’s submissions
As to the applicants’ complaint under Article 8 of the Convention, the Government claim that there was no immediate or direct link between measures sought by the applicants and their private lives. Although the applicants’ claim to find and punish their attackers is justified, the connection between their request and their private life is too vague to fall within the scope of Article 8 of the Convention.
The Government reiterate that the domestic authorities had undertaken all reasonable steps to identify and locate the attackers in both incidents reiterating their arguments made in respect of Article 3.
2. The applicants’ submissions
Should the Court conclude that their case did not attain the minimum level of severity under Article 3 of the Convention, the applicants argue under Article 8 that the attack they had suffered and the lack of an effective investigation thereof constituted an interference with their private lives. Their personal interests coincide with the general interest of the community to prevent crimes and should therefore have been protected under Article 8 of the Convention.
The applicants rely on the Costello-Roberts case, where the Court concluded that the abuse suffered by the applicant did not amount to ill-treatment within the meaning of Article 3, but considered it as possibly interfering with his physical integrity under Article 8 (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247‑C, p. 60, § 34).
The applicants further claim that there is a direct and immediate link between the State’s failure to respect their private lives and the harm suffered by them. In particular, they reiterate that, owing to the attack, the first applicant had been hospitalised and undergoing psychiatric treatment, which is partly due to the failure of the authorities to apprehend his attackers.
3. The Court’s assessment
a. Concerning the first applicant
The Court considers that the first applicant’s complaint under Article 8 of the Convention is closely connected to the one examined above under Article 3. It further considers that this complaint raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. It cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring it inadmissible have been established.
b. Concerning the second applicant
The Court must firstly determine whether the right asserted by the second applicant falls within the scope of the concept of “respect for private life” set forth in Article 8 of the Convention.
The Court recalls in this connection that “private life” includes a person’s physical and psychological integrity (see the Botta v. Italy, judgment of 24 February 1998, Reports of Judgments and Decisions 1998‑I, p. 422, § 32). It further recalls that, while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23, and Stjerna v. Finland, judgment of 25 November 1994, Series A no. 299‑B, p. 61, § 38). However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation.
The Court has previously held that a State has a positive obligation under Article 8 where it has found a direct and immediate link between the measures sought by an applicant and his private or family life even if the interference complained of occurred in relations between private individuals (see Botta v. Italy, cited above, pp. 427-428, § 34). The Court has also held that Article 8 cannot be considered applicable each time an individual’s everyday life is disrupted, but only in the exceptional cases where the State’s failure to adopt measures interferes with that individual’s right to personal development and his or her right to establish and maintain relations with other human beings and the outside world. It is incumbent on the individual concerned to demonstrate the existence of a special link between the situation complained of and the particular needs of his or her private life (see Zehnalovà and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002-V).
In the present case, the second applicant himself admitted that he never informed the police about the incident in respect of which he is complaining before the Court because he did not consider it important. It was not until three months later, when his father’s lawyer suggested that he should inform the authorities, that he filed a criminal complaint against unknown perpetrators. Moreover, in his interview with the police the second applicant stated that the whole incident was in his opinion caused by the fact that the men were drunk and it did not relate to his ethnicity.
In light of the above, the Court considers that, given that the incident complained had no significance to the applicant himself, it could not affect his private life. Consequently, the Court cannot perceive either how the alleged failure of the authorities to perform an effective investigation could have interfered with his private life.
In sum, the Court does not discern a direct or immediate link between the second applicant’s private life and the authorities’ obligation to investigate an incident, which even in his own view had no bearing on it. Article 8 is therefore not applicable in the present case.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
3. Article 13 of the Convention
1. The Government’s submissions
The Government consider that Article 13 is not applicable in the present case because the facts of the case do not raise an issue under Article 3. In the alternative, the Government invite the Court to dismiss the complaint under Article 13 as manifestly ill-founded, because the investigation of the both attacks has been effective and conducted without unreasonable delay.
2. The applicants’ submissions
The applicants maintain that the authorities had taken very few steps, if any, of their own motion to identify and apprehend the attackers. It was the applicants’ lawyer who provided the police with most of the information and evidence, some of which had not been pursued. It is clear from the facts of the case that the authorities’ failure to conduct an effective investigation in both incidents resulted in a violation of the applicants’ rights guaranteed under Article 13 taken in conjunction with Article 3 of the Convention.
3. The Court’s assessment
a. Concerning the first applicant
The Court considers that the first applicant’s complaint under this provision raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring it inadmissible have been established.
b. Concerning the second applicant
According to the Court’s case-law, Article 13 only applies where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52).
The Court notes that it has found the second applicant’s complaint under Article 3 manifestly ill-founded. For similar reasons, the second applicant did not have an “arguable claim” that his enjoyment of the right under Article 3 was breached in the circumstances of the case.
It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
Furthermore, the Court found that Article 8 was not applicable to the second applicant’s complaint.
It follows that, in so far as the second applicant complains under Article 13 taken in conjunction with Article 8, that this complaint is also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.
4. Article 14 of the Convention
1. The Government’s submissions
The Government consider the first applicants’ complaint under Article 14 wholly unsubstantiated. They maintain that nothing in the conduct of the domestic authorities indicated a difference in treatment of the applicants on the basis of their Roma ethnic origin or a tendency to cover up events or encourage an attack to their detriment. The fact that the perpetrators have not yet been identified has no connection with the ethnic origin of the applicants, but is the result of objective problems the prosecuting authorities have been experiencing during the course of the proceedings.
In this connection the Government enumerates several cases in which the police were successful in identifying and prosecuting persons who had committed crimes against individuals of Roma origin. They claim that there is no systematic problem encountered by Roma population in Croatia, other than their problems of integration in the society, which are common also in other States signatories to the Convention.
2. The applicants’ submissions
As to the complaint under Article 14, the applicants maintain that both the attacks on them and the passive conduct of the authorities result from the fact that they are of Roma ethnic origin. They rely on the Nachova case and on the assumption that a complaint of racist violence should be accorded utmost priority, as they are particularly destructive of fundamental rights (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, ECHR 2005‑...). In this respect they point out the broader situation of Roma population in Croatia as well as the recently published report of the European Commission against Racism and Intolerance (Third Report on Croatia, CRI (2005) 24, 14 June 2005).
In particular, the applicants stress that, when investigating racially induced violence, the State authorities have the duty to take all reasonable steps to unmask the racist motive of such behaviour. In the present case, the Croatian authorities clearly failed to do so thereby violating Article 3 in conjunction with Article 14 of the Convention.
3. The Court’s assessment
a. Concerning the first applicant
The Court considers that the first applicant’s complaint under this provision raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring it inadmissible have been established.
b. Concerning the second applicant
The Court reiterates that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to that extent it is autonomous – there can be no room for its application unless the facts of the case fall within the ambit of one or more of the latter (see, mutatis mutandis, Botta, cited above, p. 424, § 39).
The Court has already concluded that the treatment complained of by the second applicant does not attain the minimum level of severity so as to fall within the ambit of Article 3 of the Convention. In light of the foregoing, the Court considers that the applicant’s complaint under Article 14 in conjunction with Article 3 is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
As the Court has held that Article 8 is not applicable to the second applicant’s, Article 14 is not applicable either.
It follows that this complaint is likewise incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the complaints made by the first applicant under Articles 3, 8, 13 and 14 of the Convention admissible, without prejudging the merits;
Declares the remainder of the case inadmissible.
Santiago QuesadaChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy