ALKOVIC v. MONTENEGRO - 66895/10 (Judgment : Violation of Prohibition of discrimination - Discrimination) - Right to respect for pri...) [2017] ECHR 1098 (05 December 2017)

In the case of Alković v. Montenegro,

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

          Robert Spano, President,
          Julia Laffranque,
          Işıl Karakaş,
          Nebojša Vučinić,
          Paul Lemmens,
          Valeriu Griţco,
          Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 14 November 2017,

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

PROCEDURE

1. The case originated in an application (no. 66895/10) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Montenegrin national, Mr Rizo Alković (“the applicant”), on 9 November 2010.

2. The applicant was represented by Ms S. Lompar, a lawyer practising in Podgorica. The Montenegrin Government (“the Government”) were represented by their Agent, Mrs V. Pavličić.

3. The applicant alleged, in particular, that the authorities had failed to effectively investigate a series of ethnically and/or religiously motivated attacks against him perpetrated by individuals between 26 May and 22 September 2009.

4. On 14 December 2015 the application was communicated to the Government.

5. On 23 March 2016, under Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court, the President of the Section granted the European Roma Rights Centre leave to intervene as a third party in the proceedings.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1960. He currently lives in Belgium, but at the material time lived in Podgorica, Montenegro.

7. The applicant is a Roma and a Muslim. On an unspecified date in 2006 the applicant and his family moved into an apartment in a building constructed for socially disadvantaged families. According to the applicant, because of constant attacks in which his car and the apartment were damaged, the perpetrators of which were never found, he installed a camera outside his apartment.

A. Events between 26 May and 22 September 2009 and the ensuing proceedings

8. On 26 May 2009 the applicant’s next-door neighbour, Y, was watching a kickboxing match between a Montenegrin and a Bosnian contestant on television. The applicant overheard the next-door conversation as the doors of both his and Y’s (adjacent) terraces were open. When the Bosnian kickboxer appeared with his coaches, all of whom were Muslim, Y allegedly said that he would slaughter one of them, and X, another neighbour, made a disparaging reference to the Bosnian kickboxer’s Turkish descent. According to the applicant, X left Y’s apartment at a certain point and went to his car, from which he took a gun. Y said “turn it to the left”, which was the direction of the applicant’s terrace. This was followed by nine to ten gunshots, and Y’s calling out insulting references to the applicant’s “Turkish mother”. X, Y and Y’s family picked up the spent cartridges from the ground afterwards.

9. On 9 September 2009 three neighbours, V (Y’s wife), S and B, were talking on the next-door terrace. As he was on his terrace, the applicant overheard the conversation. V said that she was fighting “cockroaches, frogs, nits and lice, and all sorts of other things”, which had been brought by “those dirty gipsies” (“od ovija gabeljčina”). V continued by saying that B and S “[could] use a hammer and a pruning knife (kosijer), and [she] would use an axe”. S replied that “her [people] carried swords”. V said that the axe could serve just as well. S answered “no, no, he is a Muslim, I have a sword”. B said “all is fine, whatever is more readily available” (“valja što god prije stigne”). V said loudly “An axe, an axe, a sledgehammer, like the one used on pigs”.

10. On 15 September 2009 Y was having an argument with M, another neighbour, when X joined and said, among other things, that if he “saw red”, he would “kill both you and your brother here like a dog” (“e ću te ubit ka psa i tebe i brata ođe”), apparently pointing at the applicant’s apartment, adding “dirty gypsy” (“cigane glibavi”) and “trash” (“ovo smeće”). This was witnessed by M’s brother, D. It is unclear from the case-file if the applicant was present during the argument or if he learned about it in some other manner.

11. On 22 September 2009, the day of Ramadan Bayram, a religious holiday celebrated by the applicant and his family, a large cross was drawn on the applicant’s apartment door, and a large message was written on the wall next to it saying “move out or you’ll bitterly regret it” (“seli se, usko će ti bit”). The applicant called the police, who came and took photographs of the cross and the message. The same day the applicant lodged a criminal complaint with the police against the families of X, Y, S and B, and one more family living in the building.

12. Between 19 and 22 October 2009 the police interviewed X, Y, V, B, M, D, and three other neighbours.

13. X, Y, V, and B denied the applicant’s allegations. X and Y also denied that they had watched the match together, and Y submitted that everything he had said had been addressed to the Bosnian kickboxer. Both X and Y confirmed that they had heard the shots but said they did not know who had fired them. Y and his children had indeed picked up the spent cartridges from the ground, not in order to hide anything, but because the children found the spent cartridges interesting to play with. Neither X nor Y knew who was responsible for the incident of 22 September 2009, but they suspected the applicant himself.

14. V submitted that the discussion of 9 September 2009 had referred to another person sought by the police at the time in relation to various attacks, and they had been discussing how they would defend themselves in the event of an attack. B denied that she had been in V’s apartment on that occasion.

15. M confirmed that during the argument with Y, X had come and said that if he “saw red” he would “kill them, as well as this gypsy” (“napraviću dženaze i vama, a i ovom ciganinu”), pointing in the direction of the applicant’s flat. M had assumed that he had meant the applicant. D confirmed M’s statement.

16. The other two neighbours were not aware of any conflicts amongst the neighbours, or that anybody ill-treated or insulted the applicant on the basis of his national origin. They had no idea who could be responsible for the incident of 22 September 2009. The third neighbour, N.L., confirmed the applicant’s submissions in relation to another incident (see paragraph 30 (b) below).

17. On 26 October 2009 the case file was transmitted to the State prosecutor’s office (Osnovno državno tužilaštvo) in order to assess whether there were any elements of the criminal offence of jeopardising someone’s security (ugrožavanje sigurnosti).

18. On 18 November 2009 the applicant lodged a criminal complaint with the higher State prosecutor’s office (Više državno tužilaštvo) in Podgorica in relation to the above events. He filed the complaint against X, Y, V, S and B for incitement to ethnic, racial and religious hatred, discontent and intolerance (izazivanje nacionalne, rasne i vjerske mržnje, razdora i netrpeljivosti, hereinafter “hate crime”) in connection with discrimination, racial and otherwise (see paragraphs 38-39 below). He also enclosed relevant video material.

19. On 24 November 2009 the higher State prosecutor’s office rejected the complaint on the grounds that there were no elements of any hate crime or other criminal offence within its competence. The applicant was notified that he could take over the prosecution as a subsidiary prosecutor and that the case file had already been forwarded to the State prosecution service on 26 October 2009 (see paragraph 17 above).

20. On 25 November 2009 the State prosecution service issued an official report (službena zabilješka) finding that the impugned words of 26 May, as well as those of 9 September 2009, which referred to the use of swords and axes, had not been addressed to either the applicant or anybody close to him, and that the incident of 15 September 2009 could not be considered a threat. It was concluded that none of those three events had involved an element of jeopardising someone’s security, or any other criminal offence subject to public prosecution. The incident of 22 September 2009, however, could be considered as jeopardising security. On 27 November 2009 the State prosecution service asked the police to undertake measures in order to find the perpetrator. At the same time the police were informed that the applicant’s criminal complaint in this regard would be kept until the perpetrator was found, or until 22 September 2012, when the prosecution of that criminal offence would become time-barred. On 31 December 2009 the State prosecutor informed the applicant of this, as well as of the fact that he could file a criminal complaint against a specific person with appropriate evidence (uz valjane dokaze).

21. On 14 December 2009 the applicant filed an application for an investigation (zahtjev za sprovođenje istrage) with the High Court (Viši sud) in Podgorica. He enclosed the relevant videos, and proposed that the court hear a number of neighbours, including those he suspected.

22. On 17 March 2010 the High Court dismissed that application for lack of evidence. In particular, the submitted video material was considered to be inadmissible, having been obtained without a prior court order, and the court observed that the suspected neighbours had denied that what they had said related to the applicant. It was further held that the applicant had not submitted any evidence in relation to the incident of 22 September 2009, nor had he called the police at the time to come to the scene and “collect the necessary material for further analysis” in order to verify his suspicions.

23. On 26 March 2010 the applicant appealed against that decision. He submitted, in particular, that on 22 September 2009 he had actually called the police, who had only taken photographs of the scene. The fact that they had failed to do what they should have done was in no way his fault, as it was not up to him to tell the police what to do, but only to lodge a criminal complaint, which he had done.

24. On 31 May 2010 the Court of Appeal dismissed his appeal for lack of evidence, in substance endorsing the reasoning of the High Court. In doing so, the court held that the applicant’s objections as to the gathering of evidence by the police “could not be the subject of [that] court’s assessment”.

25. On 19 July 2010 the applicant lodged a constitutional appeal. He maintained, inter alia, that because of the failure of the domestic authorities to protect him and his family, they had had to move out of the apartment (see paragraph 35 below). He relied on the right to private life, the right to an effective domestic remedy, and the prohibition of discrimination.

26. On 25 March 2014 the Constitutional Court dismissed the applicant’s constitutional appeal. It considered that it should be examined under Articles 6 and 14 of the Convention and corresponding Articles of the Montenegrin Constitution, and found there had been no violation of any of them.

27. On 7 April 2016, as regards the incident of 22 September 2009, the police informed the State prosecutor’s office that “[they] had acted on [the applicant’s] criminal complaint and undertaken measures in accordance with their authority, having dedicated a significant amount of time [to the complaint]. While carrying out those official actions [they] had not found material evidence which would undoubtedly indicate the perpetrator of this criminal offence”.

B. Other relevant facts

28. The Government submitted information from the applicant’s criminal record reflecting convictions for minor offences in 1981, 1990 and 2002. For each of these offences he had received a suspended sentence.

29. On 20 December 2007 the applicant was celebrating Bayram. X and Y claimed before the domestic bodies that the applicant had celebrated inappropriately by playing loud music from very early in the morning, shooting in the air and calling Turks and Wahhabi (vehabije) to jihad. He had apparently also tried to hit X with a flagpole (koplje od zastave). The applicant submitted that X and W (the husband of X’s niece) had been insulting him and his family, while X had also spat on him, shouted obscenities and thrown stones at him, causing him minor physical injuries. On 30 September 2008 the applicant was found guilty in misdemeanour proceedings of disturbing public order and peace (narušavanje javnog reda i mira) by shooting several shots in the air from his starting pistol on 20 December 2007. He was sentenced to a ten-day period of imprisonment and the pistol was confiscated. The decision was upheld by a second-instance body on 23 December 2008. In relation to the same incident, on 29 July 2008 X and W were charged with violent behaviour against the applicant. In the course of the proceedings, a medical expert witness submitted that the applicant had a contusion (nagnječenje) on the left part of the back of his head, which would have been classified as a minor physical injury at the time it had been inflicted. The medical expert submitted that the injury had been caused by a blunt object, possibly a “larger stone”, and that it could not have been caused by sand or “stones the size of beans”. On 24 May 2011, after the case had been remitted, the Court of First Instance acquitted X and W, considering that it had not been proved that they had committed the offence.

30. The applicant reported the following events to the police, but to no avail: (a) on 6 October 2008 an unknown person had thrown a brick and broken one of the windows of his apartment; (b) on 11 September 2009 S and her husband, Z, had tried to hit the applicant’s parked car with their own car; this was confirmed by another neighbour, N.L., who witnessed this event and was interviewed by the police in October 2009 (see paragraph 16 above); (c) on 16 October 2009 S had asked Y aloud if he was going to “slaughter” somebody, and he had answered that he was, both of them looking at the applicant; S had said that he would “make [his] car dirty with that man”; (d) on 19 December 2009 an unknown person had fired several shots in front of the applicant’s apartment, below the children’s bedroom; the applicant gave the police eight bullet shells that he had found on the ground; (e) on 1 January 2010, shortly after midnight, X had thrown firecrackers at the applicant’s car and broken its windscreen; he had also thrown a glass bottle at the applicant and a metal bar at his son, swearing profusely and threatening to slaughter them all; this had been followed by gunshots.

31. On 21 October, 23 October and 30 October 2009 X, V and M.Ć. respectively lodged criminal complaints against the applicant for insulting and provoking them, and for playing loud music and calling Turks and Wahhabi to jihad. On 25 December 2009 those complaints were rejected by the State prosecutor.

32. On 24 April 2010 the Court of First Instance (Osnovni sud) in Podgorica found the applicant guilty of recording Y without authorisation and eavesdropping (prisluškivanje) on him, and sentenced him to 40 days’ imprisonment, suspended for a period of one year. That judgment was upheld by the High Court on 15 October 2010. On 26 December 2012 the Constitutional Court dismissed a constitutional appeal by the applicant in this regard.

33. On 7 May 2010 the applicant was fined 800 euros (EUR) in minor offence proceedings (prekršajni postupak) for threatening (izazivanje osjećaja ugroženosti) V, a decision which was upheld on 7 July 2010.

34. On 26 May 2010 the applicant lodged a criminal complaint against X with the State prosecution service, alleging that in August and September 2009 he had threatened to “cut [the applicant’s] gypsy head off and impale it on a pike” (nabiti na kolac). On 27 July 2010 the deputy State prosecutor rejected the criminal complaint. On 12 August 2010 the applicant filed a private criminal action (optužni predlog) against X, who was acquitted by the Court of First Instance on 7 June 2011. The court found that X had indeed said the impugned words in front of a witness, and that the words could have made the applicant feel frightened and insecure, but the court could not accept “that [the applicant] had taken those words seriously, especially since the witness, who was the only one who had heard the words, had not taken them seriously, which was why he had informed the applicant about them only two months later”. That decision was upheld by the High Court on 7 March 2012.

35. On 6 July 2010 X threatened the applicant’s daughter by saying that he would kill and slaughter them all, with his hands stretched towards her neck. The girl apparently fainted and was admitted to hospital unconscious. The same day the applicant and his family moved out of their apartment. They were allegedly on a hunger strike for the next twenty-four days, seeking help from various State institutions.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Criminal Code of Montenegro (Krivični zakonik Crne Gore, published in the Official Gazette of the Republic of Montenegro - OG RM - nos. 70/03, 13/04, 47/06, and the Official Gazette of Montenegro - OGM - nos. 40/08, 25/10, 73/10, 32/11, 64/11, 40/13, 56/13, 14/15, 42/15, 058/15 and 044/17)

36. Respectively, Articles 168, 370 and 443 of this Code provide for the criminal offences of jeopardising another person’s security, incitement to ethnic, racial and religious hatred, and discrimination, racial or otherwise.

37. Article 168 provides, inter alia, that whoever jeopardises another person’s security by threatening an attack on their life or on the life of someone close to them shall be fined or sentenced to a year in prison. Whoever commits this offence in respect of several persons or commits the offence out of hatred shall be sentenced to between three months and three years in prison.

38. Article 370 provides, inter alia, that whoever publicly encourages violence or hatred towards a group or a group member on the basis of their race, skin colour, religion, origin, or nationality shall be sentenced to between six months and five years in prison. If this offence is committed by jeopardising someone’s security, the perpetrator shall be sentenced to between one and eight years in prison.

39. Article 443 provides, inter alia, that whoever violates someone’s fundamental human rights and freedoms on the basis of their race, skin colour, nationality, ethnic origin or other personal characteristic, shall be sentenced to between six months and five years in prison.

B. The Criminal Procedure Code 2003 (Zakonik o krivičnom postupku, published in the OG RM nos. 71/03, 07/04, 47/06, and 57/09).

40. Articles 19, 20, 44, 45, 59 and 243, read in conjunction, provided, inter alia, that formal criminal proceedings (krivični postupak) could be instituted at the request of an authorised prosecutor. In respect of crimes subject to public prosecution, the authorised prosecutor would be the State prosecutor. However, his authority to decide whether to press charges was bound by the principle of legality, which required that he had to act whenever there was a reasonable suspicion that a crime subject to public prosecution had been committed. For crimes subject to private prosecution (za koja se goni po privatnoj tužbi), the authorised prosecutor would be a victim (privatni tužilac).

41. Article 59 provided that, should the State prosecutor decide that there was no basis on which to press charges, he had to inform the victim of that decision, and the latter would then have the right to take over the prosecution of the case on his own behalf, as a “subsidiary prosecutor” (oštećeni kao tužilac), within eight days of being notified of that decision.

C. The Criminal Procedure Code 2009 (Zakonik o krivičnom postupku, published in the OGM nos. 57/09, 049/10, 047/14, 002/15, 035/15 and 058/15).

42. This Code entered into force on 1 September 2011 and thereby repealed the previous Code (except for Chapter XXIX, which is not relevant to the present case).

43. Articles 437 and 438 provide for a possibility for the Supreme State Prosecutor to lodge a request for the protection of legality (zahtjev za zaštitu zakonitosti), either of his own motion or upon a proposal to that effect submitted by a defendant sentenced to unconditional imprisonment of one year or more.

D. The Obligations Act (Zakon o obligacionim odnosima; published in the OGM nos. 47/08 and 04/11)

44. Sections 148 and 149 set out the different grounds for claiming compensation for both pecuniary and non-pecuniary damage, including for a violation of personal rights (povreda prava ličnosti). In particular, section 148(1) provides that whoever causes somebody else damage is liable to pay compensation, unless he or she can prove that the damage was not his or her fault.

45. Sections 206-207 provide that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of personal rights (prava ličnosti) is entitled to sue for financial compensation in the civil courts and, in addition, to request other forms of redress “which might be capable” of affording adequate non-pecuniary relief. This Act entered into force on 15 August 2008.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 8 AND 14 OF THE CONVENTION

46. The applicant complains under Articles 8 and 14 of the Convention regarding the failure of the authorities to effectively investigate a series of ethnically and/or religiously motivated attacks against him perpetrated by individuals between 26 May and 22 September 2009. The Court considers that it is appropriate to examine the applicant’s complaints under Article 8 taken in conjunction with Article 14 (see, mutatis mutandis, Škorjanec v. Croatia, no. 25536/14, § 38, ECHR 2017 (extracts)).

The relevant Articles read as follows:

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.”

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.”

48. The Government contested the applicant’s allegations.

A. Admissibility

49. The Government submitted that the applicant had failed to lodge a request for the protection of legality with the Supreme State Prosecutor under Articles 437 and 438 of the Criminal Procedure Code 2009, and/or a compensation claim under sections 148-149 and 206-207 of the Obligations Act (see paragraphs 43-45 above).

50. The applicant maintained that he had exhausted all effective domestic remedies. In particular, a request for the protection of legality was not an effective domestic remedy, given that it could only be submitted by a State prosecutor with competence, and not by an applicant himself or his representative. In any event, he had lodged his application before the Criminal Procedure Code 2009 and the relevant Articles to which the Government had referred had entered into force.

51. The relevant general principles concerning exhaustion of domestic remedies are set out in Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014. In particular, the Court must 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 İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000-VII). An applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III).

52. Turning to the present case, the Court has already found that a request for the protection of legality is not an effective domestic remedy, given that it can only be filed by a public prosecutor (see Lepojić v. Serbia, no. 13909/05, § 54, 6 November 2007). The Court finds no reason to depart from that conclusion in the present case.

53. The Court also takes note of the allegations brought by the applicant before the police and observes that there is no reason to question the effectiveness of a criminal complaint as a remedy. It also reiterates that an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see paragraph 51 in fine above). In these circumstances, and leaving aside the question of whether a civil remedy is in fact appropriate to the applicant’s complaint, the Court considers that by filing a criminal complaint the applicant exhausted effective domestic remedies and was thus dispensed from filing a compensation claim in addition. The Government’s objection must therefore be dismissed.

54. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

55. The applicant made no further comments in addition to his initial complaints and submissions.

(b) The Government

56. The Government contested the applicant’s complaint and submitted that there had been no violation of any of the Articles referred to. In particular, the applicant was a person who was inclined to conflict and who was prone to violent behaviour and breaking the law, as proved by his previous convictions (see paragraph 28 above) and his dysfunctional relations with his neighbours. The same neighbours had good relations with people of other nationalities and religions living in the same building, including Muslims, which proved there had been no racial or religious intolerance in the present case.

57. As regards the events between 26 May and 22 September 2009, the prosecuting authorities with competence had acted lawfully and had given duly explained decisions on the basis of the data collected and, inter alia, the applicant’s dysfunctional relations with his neighbours. The DVD submitted by the applicant could not be used as valid evidence, since it had not been obtained in accordance with the law and in any event had been produced in 2003 and edited much later.

58. The domestic authorities had also acted promptly after the incident of 20 December 2007, which had resulted in an indictment against X and W (see paragraph 29 above), and following the applicant’s criminal complaint of 26 May 2010, which had had to be rejected in the absence of any elements of a criminal offence subject to public prosecution (see paragraph 34 above). The applicant’s claims that the State authorities had treated his criminal complaints differently were not true, as several criminal complaints against him had also been rejected in the same period (see paragraph 31 above).

59. As regards the complaint under Article 14, the applicant had offered no evidence that there had been a situation similar to his where parties had been treated differently.

60. The Government also argued that the third party’s submissions were general and vague (see paragraphs 61-62 below). They submitted that Roma in Montenegro were protected by the Constitution, which incorporated all international legal standards, and a number of statutes, including the Discrimination Prohibition Act, and the Minority Rights and Freedoms Act. Montenegro had also adopted a “Strategy for improving the situation of Roma and Egyptians 2012-2016”, which defined a whole set of legal, political, economic, social, health and other measures and activities, and whose implementation was monitored by a commission composed also of representatives of Roma, Egyptians and non-governmental organisations (NGOs) for such groups. The Government further maintained that Montenegro had worked on improving the living standards of Roma, particularly their living conditions, by building a number of residential units in several towns.

61. The European Roma Rights Centre (ERRC) referred to various international reports and surveys concerning the relations between Roma and the police, and an increase in violence against Roma. In addition, a survey conducted by a Montenegrin NGO had indicated that between 21% and 43.5% of respondents would prefer not to have a Roma neighbour, colleague or boss, and for there to be no Roma in the country at all. Montenegrin criminal legislation had been amended in 2013 so as to introduce bias as an aggravating circumstance, but there was no indication that this had made any difference in practice. There were no available records on hate crimes for the period 2009-2014, the only available data being that there had been no sentences in 2014. The ERRC submitted that the United Nations Committee on the Elimination of Racial Discrimination had observed that serious cases of incitement to racial hatred in Montenegro very often were treated as misdemeanours, and seldom resulted in convictions, and that this had been criticised by the European Commission against Racism and Intolerance as early as 2008. The ERRC maintained that this amounted to institutional racism.

62. They further submitted that vulnerable victims, such as Roma, alleging racially motivated violence were unlikely to be able to prove beyond reasonable doubt that they had been subjected to discrimination, especially when they were also victims of a failure on the part of the domestic authorities to carry out an effective investigation. They asserted that the authorities’ failure to implement appropriate legal and policy measures disclosed institutional racism.

2. The Court’s assessment

63. The relevant principles as regards Article 8 are set out in Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 58-59, ECHR 2012; Sandra Janković v. Croatia, no. 38478/05, §§ 44-46, 5 March 2009; and R.B. v. Hungary, no. 64602/12, § 78 and §§ 81-84, 12 April 2016; and, as regards Article 14, in Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005-VII; Aksu, cited above, §§ 43-44, and, mutatis mutandis, Šečić v. Croatia, no. 40116/02, §§ 66-67, 31 May 2007.

64. In particular, the Court has previously held, in various contexts, that the concept of private life within the meaning of Article 8 of the Convention includes a person’s physical and psychological integrity (see, for example, Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004-VI) and also covers an individual’s ethnic identity (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008, and Ciubotaru v. Moldova, no. 27138/04, § 49, 27 April 2010).

65. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in effective respect for private life, which may involve the adoption of measures in the sphere of relations between individuals (see Tavlı v. Turkey, no. 11449/02, § 28, 9 November 2006). To that end, States are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see Isaković Vidović v. Serbia, no. 41694/07, § 59, 1 July 2014, and the authorities cited therein). Moreover, the State’s positive obligation under Article 8 to safeguard the individual’s physical integrity may also extend to questions relating to the effectiveness of a criminal investigation (see M.C. v. Bulgaria, no. 39272/98, § 152, ECHR 2003-XII). The Court reiterates that, for an “investigation to be regarded as ‘effective’, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means” (see Király and Dömötör v. Hungary, no. 10851/13, § 79, 17 January 2017).

66. The Court also reiterates that it is part of the authorities’ responsibilities under Article 14, taken in conjunction with Articles 2, 3 or 8, to investigate the existence of a possible link between racist attitudes and acts of violence (see, with respect to Article 14 in conjunction with Article 2, Nachova and Others, cited above, § 161; with respect to Article 14 in conjunction with Article 3, Šečić, cited above, § 66, and Abdu v. Bulgaria, no. 26827/08, § 44, 11 March 2014; and with respect to Article 14 in conjunction with Article 8, R.B., cited above, § 84). Accordingly, where any evidence of racist verbal abuse comes to light in an investigation of violent acts, it must be checked and, if confirmed, a thorough examination of all the facts should be undertaken in order to uncover any possible racist motives for the violence (see Balázs v. Hungary, no. 15529/12, § 61, 20 October 2015). Admittedly, in practice it is often extremely difficult to prove a racist motive. The obligation on the respondent State to investigate possible racist overtones to an act of violence is, however, an obligation which concerns the means employed rather than the specific result achieved. The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth, and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of racially induced violence (see, mutatis mutandis, Škorjanec, cited above, § 57, and Abdu, cited above, §§ 43-45, with further references).

67. The Court lastly reiterates that its task is not to substitute itself for the competent domestic authorities in determining the most appropriate methods of protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Sandra Janković, cited above, § 46).

68. Turning to the present case, the Court firstly notes that the Montenegrin legal framework provided for the criminal offences of jeopardising someone’s security, incitement to ethnic, racial and religious hatred, and discrimination, racial or otherwise. The Court further observes that Montenegrin criminal law distinguished between criminal offences to be prosecuted by the State prosecutor and criminal offences to be prosecuted by means of a private prosecution. It also provided for the injured party to act as a subsidiary prosecutor. In respect of criminal offences for which the prosecution was to be undertaken by the State prosecutor, where that official declined to prosecute, on whatever grounds, the injured party could take over the prosecution as a subsidiary prosecutor. In these circumstances, the Court is satisfied that, in the present case, the domestic legal framework as such provided sufficient protection (see Isaković Vidović, cited above, § 62).

69. The Court notes that most of the impugned remarks or actions were not made in the applicant’s presence nor aimed at him directly (see, by contrast, R.B., cited above, § 80). It is also clear that the applicant and his family were not physically harmed by any violent acts. Nevertheless, the applicant alleged that there were repeated expressions of violent intent and threatening behaviour, as well as indirect acts of violence, which could arouse a well-founded fear that violence might actually be used (see, mutatis mutandis, Hajduová v. Slovakia, no. 2660/03, § 49, 30 November 2010). In particular, the applicant complained also regarding the shooting by X on the night of 26 May 2009 and the incident on 22 September 2009. The Court will focus its examination on these two incidents.

70. The Court notes in this regard that the prosecutor completely omitted the shooting of 26 May 2009 from his conclusion. The shooting clearly took place, having been confirmed by both X and Y, and the relevant bullet shells were still available, having been collected by Y and his children. However, nothing in the case file indicates that anything was done to find out whether it was indeed X who had been shooting, for example taking the collected bullet shells from Y for analysis, checking if X did indeed have a gun and, if so, whether the collected bullets had been fired from that gun, and checking what the motive for the shooting was.

71. As regards the incident of 22 September 2009 it was considered to involve the elements of the crime of jeopardising security, and the prosecutor asked the police to undertake the necessary measures in order to find the perpetrator. It was clearly indicated that a criminal prosecution in this regard would become time-barred on 22 September 2012. When dismissing the applicant’s request for an investigation into that incident, the domestic courts held that evidence should have been provided by either the applicant or the police, whom allegedly the applicant had never called. When the applicant objected to that finding by submitting that he had both submitted an official complaint and reported the impugned incident to the police, who had merely taken photos of the scene without taking any further evidence, the courts dismissed his argument by simply stating that it was not up to them to assess the work of the police. The police submitted only in 2016, that is four years after criminal prosecution of the criminal offence had become time-barred, that they “had implemented measures, having dedicated a significant amount of time [to the complaint]”, but to no avail (see paragraph 27 above). Apart from their coming to the scene on 22 September 2009 and taking photographs, there is nothing in the case file that would indicate exactly what other measures were taken in this regard and when.

72. In these particular circumstances, the Court finds that the above-mentioned course of action in itself was not capable of leading to the establishment of the facts of the case, and did not constitute a sufficient response to the situation complained of. The cumulative effect of those shortcomings in the investigations was that the shooting, and the threat of 22 September 2009 remained virtually without legal consequences, and the applicant was not provided with the required protection of his right to psychological integrity (see, mutatis mutandis, Király and Dömötör, cited above, § 80). He could not have the benefit of the implementation of a legal framework affording effective protection. This applies all the more, given the fact that the applicant is Roma as well as Muslim, and that there was not one, isolated incident directed against him, but many, and in view of the nature of these other incidents (see paragraphs 29-30 and 34-35 above). The Court is mindful of the ongoing conflictual relationship between the applicant and his neighbours, as well as his own contribution to that conflict (see paragraphs 28-35 above). However, it does not consider that these factors justify the authorities’ lack of sufficient response in respect of the applicant’s complaints regarding the shooting and the threat.

73. In view of the above, the Court considers that the manner in which the criminal-law mechanisms were implemented in the present case by the judicial authorities was defective to the point of constituting a violation of the respondent State’s obligations under Article 8 of the Convention (see, mutatis mutandis, Sandra Janković, §§ 52-58, and Isaković Vidović¸ §§ 61-64, both cited above) in conjunction with Article 14 of the Convention (see, mutatis mutandis, Škorjanec, cited above, §§ 71-72).

II. ALLEGED VIOLATION OF ARTICLES 9 AND 13 OF THE CONVENTION

74. The applicant made the same complaint under Articles 9 and 13 of the Convention, which read as follows:

Article 9

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

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.”

75. The Government contested the applicant’s allegations.

76. The Court notes that this complaint is linked to the one examined above, and must therefore likewise be declared admissible.

77. Having regard to its finding under Article 8 in conjunction with Article 14, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 9 (see, mutatis mutandis, Hoffmann v. Austria, 23 June 1993, § 38, Series A no. 255-C) and Article 13 (see, mutatis mutandis, Zorica Jovanović v. Serbia, no. 21794/08, § 80, ECHR 2013).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

78. 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

79. The applicant claimed 100,001 euros (EUR) in respect of non-pecuniary damage.

80. The Government contested the applicant’s claim as arbitrary, inappropriately high and unjustified, and contrary to the relevant case-law of the Court.

81. The Court accepts that the applicant has suffered non-pecuniary damage which cannot be sufficiently compensated by the finding of a violation alone. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,000 under this head.

B. Costs and expenses

82. The applicant also claimed EUR 6,630.25 for costs and expenses incurred before the domestic courts, and EUR 1,200 for those incurred before the Court.

83. The Government contested the applicant’s claim in respect of costs and expenses incurred before the domestic courts, and left it to the Court to assess the claim in respect of costs and expenses incurred before it.

84. In accordance with 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 (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 to cover costs under all heads.

C. Default interest

85. 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 application admissible;

2. Holds that there has been a violation of Article 8 in conjunction with Article 14 of the Convention;

3. Holds that there is no need to examine the complaint under Articles 9 and 13 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 5,000 (five thousand 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;

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

Done in English, and notified in writing on 5 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Robert Spano
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> ALKOVIC v. MONTENEGRO - 66895/10 (Judgment : Violation of Prohibition of discrimination - Discrimination) - Right to respect for pri...) [2017] ECHR 1098 (05 December 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/1098.html Cite as: CE:ECHR:2017:1205JUD006689510, ECLI:CE:ECHR:2017:1205JUD006689510, [2017] ECHR 1098