FIRST SECTION

CASE OF ŠEČIĆ v. CROATIA

(Application no. 40116/02)

JUDGMENT

STRASBOURG

31 May 2007

FINAL

31/08/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Šečić v. Croatia,

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

Mr C.L. Rozakis , President , Mr L. Loucaides , Mrs N. Vajić , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens, judges , and Mr S. Nielsen , Section Registrar ,

Having deliberated in private on 10 May 2007,

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

PROCEDURE

1. The case originated in an application (no. 40116/02) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Šemso Šečić (“the applicant”), on 12 November 2002.

2. The applicant was represented by the European Roma Rights Centre based in Budapest and by Mrs Lovorka Kušan, a lawyer practising in Ivanić-Grad. The Croatian Government (“the Government”) were represented by their Agents, first Mrs L. Lukina-Karajković and subsequently Mrs Š. Stažnik.

3. The applicant alleged, in particular, that the domestic authorities had failed to undertake a serious and thorough investigation of an attack on him, and also that he had been discriminated against on the basis of his Roma origin.

4. By a decision of 15 June 2006 the Court declared the application partly admissible.

5. The applicant and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1963 and lives in Zagreb.

7. On 29 April 1999 between 8 and 8.30 p.m. the applicant, together with several other individuals, was collecting scrap metal in Harambašićeva Street in Zagreb.

8. Suddenly, two unidentified men approached the group and attacked the 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.

9. 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 up and down the nearby streets attempting to find the attackers.

10. An ambulance arrived and took the applicant to a nearby hospital. The doctors concluded that no bones had been broken, provided the applicant with painkillers and sent him home to rest.

11. During the night the applicant experienced severe pain and the next day he went to another hospital where he was examined again. It was found that as a result of the assault he had sustained multiple rib fractures, in particular of the ninth, tenth and eleventh left ribs. He was kept in hospital for further treatment and discharged a week later, on 5 May 1999.

12. According to the applicant, since 1 June 1999 he has been having psychiatric treatment as a result of the incident, he had attended the Zagreb Psychiatric Clinic on at least eighteen occasions, and he had been 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.

13. On 15 July 1999 the applicant's lawyer lodged a criminal complaint with the Zagreb Municipal State Attorney's Office ( Općinsko državno odvjetništvo u Zagrebu “the State Attorney's Office”) against persons unknown. She gave a factual account of the incident and alleged that the applicant had been seriously injured. The applicant offered his own testimony in evidence and proposed that three eyewitnesses be heard. The applicant requested the State Attorney's Office to investigate the incident, identify the perpetrators and institute criminal proceedings against them.

14. On the same day the applicant's lawyer sent a letter to the Zagreb Police Department ( Policijska uprava Zagrebačka “the police”) in which she informed the police of the incident and requested the information necessary for the institution of criminal proceedings. She repeated her request on 30 August 1999.

15. On 31 August 1999 the police informed the applicant's lawyer that the perpetrators had not been identified.

16. On 2 September 1999 the applicant's lawyer wrote to the Minister of the Interior ( ministar unutarnjih poslova ) informing him of 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.

17. On 29 September 1999 the police interviewed the applicant about the events of the evening of 29 April 1999. The applicant described the two attackers vaguely, stating that due to his short-sightedness he was not likely to be able to recognise them.

18. On the same date, the police interviewed B. T., who had been with the applicant on the date in question. He also described the attackers, stating that he had not seen their faces clearly because he had been hiding from them during the attack.

19. Five days later, 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 as everything had happened very fast, he had not been able to see them clearly.

20. On 7 October 1999 the police interviewed Z. B., another eyewitness to the incident, who gave a similar statement.

21. In January 2000 the applicant's lawyer asked the State Attorney's Office twice what steps had been taken to identify and prosecute the perpetrators, at the same time complaining that the investigation ws inadequate.

22. On 10 February 2000 the State Attorney's Office informed the applicant's lawyer that they had urged the police to speed up the investigation.

23. On 21 February 2000 the State Attorney's Office informed the applicant's 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 applicant and several other witnesses and had searched the area but had not identified any person fitting the description of the perpetrators.

24. On 16 March 2000 the applicant's lawyer informed the State Attorney's Office that the individuals who had attacked the applicant had apparently been engaged in numerous attacks against Roma persons in Zagreb in the same period. Two of the Roma who had been attacked, I. S. and O. D., had told the applicant's lawyer that they would be able to identify the perpetrators and that O. D. had personally witnessed the attack on the applicant. Furthermore, the police had already identified and apprehended O. D.'s attackers. The lawyer stressed that all the incidents had been racially motivated, because the attackers had combined physical with racist verbal abuse.

25. On 16 June 2000 the State Attorney's Office informed the applicant's lawyer that the police had been unsuccessful in finding O. D. and that they had no record of any assault on him.

26. On 1 August 2000 O.D. was located and interviewed at the Beli Manastir Municipality State Attorney's Office.. 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 applicant's attackers. He remembered S. because he had a large scar on his face.

27. The police subsequently identified S. as 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 had identified him despite his very noticeable scar. Also, according to the information available to the authorities, S. did not belong to any skinhead group. Nothing in the police case file indicates that S. was summoned for questioning regarding the incident.

28. Meanwhile, on 24 May 2000 the applicant's lawyer wrote again to the State Attorney's Office stating that Croatian Radio Television (HRT) had broadcast a report on 14 May 2000 in which a young skinhead had been interviewed about his reasons for engaging in attacks on the Roma population in Zagreb. She claimed that the person interviewed had alluded to the incident of 29 April 1999 involving the applicant.

29. The State Attorney's Office requested the editor of HRT to give them the necessary information in order to identify the person interviewed.

30. On 18 April 2001 the police interviewed the journalist who did the interview. The journalist stated that the skinhead he had interviewed had talked generally about his hatred of the Roma population, but that he had not specifically addressed the incident at issue. The interviewee lived in the part of town where the attack took place and had described how annoying he found it when Roma came to his neighbourhood to collect scrap 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.

31. Meanwhile, on 14 February 2001 the applicant's lawyer complained again to the State Attorney's Office and to the Minister of the Interior of the poor quality and unacceptable duration of the investigation. She requested an update and complained that there appeared to be no real effort on the part of the relevant authorities to identify and apprehend the perpetrators. She also gave the prosecuting authorities some new information, namely that the persons who had attacked the 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 of both victims of and witnesses to such attacks.

32. On 22 May 2001 the Ministry of the Interior informed the applicant's lawyer that the police had taken appropriate action on receipt of all the information provided by her.

33. On 6 April 2002 the applicant lodged a constitutional complaint with the Constitutional Court, requesting it to order the State Attorney's Office to take all necessary action to complete the investigation as soon as possible and within six months at the latest.

34. On 12 November 2002 the Constitutional Court informed the applicant's 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.

35. The proceedings are still pending at the pre-trial stage.

II. RELEVANT DOMESTIC LAW

36. 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 used to exist 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 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 information he intends to publish....

6. The court may order a journalist to reveal the source of published information or information he intends to publish if that is necessary for the protection of the public interest and involves extremely significant and serious circumstances, whereby it is indisputably established:

(i) there is no reasonable alternative to revealing the source of information or that the authority indicated in paragraph 4 of this section, which seeks that the source be revealed, has already taken such a measure, and

(ii) the law-based public-interest justification for revealing the source of information clearly prevails over the public-interest justification for protecting the source of information.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 3, 8 AND 13 OF THE CONVENTION

37. The applicant complained that the investigation carried out by the Croatian authorities following the attack on him had been unreasonably delayed and ineffective, in breach of Articles 3, 8 and 13 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

“Everyone has the right to respect for his private ... life...

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.”

A. The parties' submissions

1. The applicant

38. The applicant maintained that the criminal investigation in his case had now been pending for seven and a half years, during which the police had failed to investigate the attack properly. He stressed that his lawyer had 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 applicant considered the Government's explanation of the prolonged duration of the investigations contradictory and unsatisfactory. In particular, the police had firstly stated that he had given a detailed description of the attackers, but had later claimed the contrary.

39. The applicant further submitted that he had not been informed of several omissions by the police, in particular of the reasons why the police had never sought to investigate the person identified by O. D. as one of the possible attackers. It appeared from the documents submitted that the identified individual, known as S., had a criminal record, whereas he had not even been questioned about the attack on the applicant.

40. Moreover, the applicant also pointed out that the police had never taken any action other than to interview the applicant and several eyewitnesses proposed by his lawyer, even though Croatian law provided 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 measures and so on.

41. The police had 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 applicant observed that such a possibility had been available ever since the Media Act had come into force, but that the domestic authorities had nonetheless never used it. Furthermore, such an order would not have been contrary to the freedom of expression guaranteed under the Convention, since in the present case the general interest in prevention of crime against ethnic minorities prevailed over the protection of the source of information.

42. For these reasons, the investigation had not met the standards set out in the Court's case-law with respect to Article 3 of the Convention, taken alone and in conjunction with Article 13. Alternatively, should the Court conclude that his case did not attain the minimum level of severity under Article 3, the applicant argued under Article 8 that the attack he had suffered and the lack of an effective investigation thereof, had constituted an unjustified interference with his private life.

2. The Government

43. The Government contested the applicant's allegations. They claimed at the outset that the ill-treatment to which the applicant had been exposed had not attained a level of severity which would justify the application of Article 3 of the Convention. The incident had been caused by unknown individuals and not by representatives of the authorities and the Government could not assess to what extent the applicant's mental suffering following the incident had been caused by the attack itself or whether it had existed before.

44. In respect of the investigation following the incident, the Government firstly contended that the positive obligation of the State in cases when the ill-treatment had been caused by third persons went only so far as that the State was expected to prevent acts of which its bodies were or should be aware.

45. Furthermore, the Government pointed out that the police had intervened immediately after having been informed about the attack. The subsequent investigation had been significantly hindered from the very outset, however, because neither the applicant nor the persons who had witnessed the attack had been able to give a sufficiently detailed description of the attackers. Moreover, the applicant had admitted that he would not be able to recognise the attackers even if he were to see them again. During the investigation the police had interviewed all the potential witnesses to the incident, including persons living in the area and a waitress working in a nearby café. All actions had been taken in the shortest time possible.

46. 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 the large and visible scar on his face and the fact that he was well known to the police, although not as a member of a skinhead group – the police had excluded him from the list of possible suspects.

47. As to the journalist interviewed, the Government submitted 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.

48. In conclusion, the Government deemed that the investigation in respect of this incident had not constituted a violation of Article 3 or 13 of the Convention. As to the applicant's complaint under Article 8 of the Convention, the Government claimed that there had been no immediate or direct link between the actions pursued and his private life.

B. The Court's assessment

49. Having regard to the nature and the substance of the applicant's complaint in the present case, the Court finds that it falls to be examined primarily under Article 3 of the Convention.

50. The Court reiterates at the outset that the ill-treatment suffered 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).

51. In the present case, the Court considers that the injury suffered by the applicant, including several broken ribs and subsequent hospitalisation, was sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention.

52. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see A. v. the United Kingdom , judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2699, § 22; Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V; and E. and Others v. the United Kingdom , no. 33218/96, 26 November 2002).

53. Article 3 of the Convention may also give rise to a positive obligation to conduct an official investigation (see Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports 1998-VIII, p. 3290, § 102). Such a positive obligation cannot be considered in principle to be limited solely to cases of ill-treatment by State agents (see M.C. v. Bulgaria , no. 39272/98, § 151, ECHR 2003 ‑ XII).

54. Lastly, the Court reiterates that the scope of the above obligation by the State is one of means, not of result; the authorities must have taken all reasonable steps available to them to secure the evidence concerning the incident (see, mutatis mutandis , Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003 ‑ V). A requirement of promptness and reasonable expedition of the investigation is implicit in this context (see, mutatis mutandis , YaÅŸa v. Turkey , judgment of 2 September 1998, Reports 1998 ‑ VI, p. 2439, §§ 102-104).

55. Turning to the present case, since the event complained of took place the police have not brought charges against anyone and the criminal proceedings have now been pending in the pre-trial phase for almost seven years.

56. The Government submitted the complete police case file in the matter, containing interviews with the applicant and several eyewitnesses, which the police claim has not produced any leads. Yet, presumably on the basis of the description of the attackers, the police concluded that the attack had been committed by members of a skinhead group, which has been known to participate in similar incidents in the past. The police appear never to have brought in for questioning any person belonging to this group or to have pursued this information in any other way. Moreover, they excluded the person S. identified by one of the witnesses from the list of possible suspects without questioning him about the attack.

57. The police also interviewed the journalist who had talked to one of the skinhead members who had alluded to the attack on the applicant. However, they did not request the competent court to order that the journalist reveal his source of information in line with the provisions of the domestic law. The relevant law had already changed to allow such a possibility by 2003, but the Government did not explain why the police did not avail themselves of this, given that there appeared to be no further leads in the case. The Court considers that such an action by the police or the competent State Attorney's Office would not a priori be incompatible with the freedom of the media guaranteed under Article 10 of the Convention, since, in any event, it would be for the competent court to weigh all the interests involved and to decide whether or not it was necessary in the particular circumstances of the case to reveal the interviewed person's identity.

58. Lastly, the Court notes that the police have not resorted to any other measures of investigation allowed for by the domestic law, other than interviewing witnesses proposed by the applicants' lawyer. In this connection, the Court cannot but note that the last activity of the police in the case took place in 2001.

59. Having considered all the material in its possession and the arguments put forward by the parties, the Court considers that the failure of the State authorities to further the case or obtain any tangible evidence with a view to identifying and arresting the attackers over a prolonged period of time indicates that the investigation did not meet the requirements of Article 3 of the Convention.

60. In consequence, the Court finds that there has been a breach of Article 3 of the Convention.

61. Having regard to the above conclusion, in the circumstances of the present case the Court finds that no separate issues arise under Articles 8 or 13 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUCTION WITH ARTICLE 3 OF THE CONVENTION

62. The applicant also complained that both his ill-treatment and the subsequent proceedings conducted by the authorities showed that he had been discriminated against on account of his ethnic origin. He relied on Article 14 of the Convention, taken in conjunction with Article 3 of the Convention. Article 14 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. The parties' submissions

63. The applicant maintained that the attack on him and the lack of action by the authorities had resulted from the fact that he was of Roma origin. He relied on the Nachova case (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, ECHR 2005 ‑ ...) and on the assumption that a complaint of racist violence should be accorded utmost priority, as racist violence was particularly destructive of fundamental rights. In this respect the applicant pointed to the broader situation of the 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).

64. The Government considered the applicant's Article 14 complaint wholly unsubstantiated. They maintained that nothing in the conduct of the domestic authorities had indicated a difference in treatment of the applicant on the basis of his Roma origin or a tendency to cover up events or encourage an attack to his detriment. The fact that the perpetrators had not yet been identified had no connection with the ethnic origin of the applicant, but was the result of objective problems the prosecuting authorities had experienced during the course of the proceedings.

65. In this connection the Government enumerated several cases in which the police had been successful in identifying and prosecuting persons who had committed crimes against individuals of Roma origin. They claimed that there was no systemic problem encountered by the Roma population in Croatia, other than their difficulties of integration into society, which were common also in other States signatory to the Convention.

B. The Court's assessment

66. The Court reiterates that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State's obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and is not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and Others, cited above, § 160, ECHR 2005 ‑ ...).

67. The Court considers the foregoing necessarily true also in cases where the treatment contrary to Article 3 of the Convention is inflicted by private individuals. Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Nachova and Others, cited above, with further references).

68. In the present case it is suspected that the applicant's attackers belonged to a skinhead group which is by its nature governed by extremist and racist ideology. Both the police and the Government admitted this fact.

69. The Court considers it unacceptable that, being aware that the event at issue was most probably induced by ethnic hatred, the police allowed the investigation to last for more than seven years without taking any serious action with a view to identifying or prosecuting the perpetrators (see paragraphs 58-60 above).

70. Consequently, the Court considers that there has been a violation of Article 14 taken in conjunction with the procedural aspect of Article 3 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

71. 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

72. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage on account of pain, frustration and humiliation suffered as a result of the attack and of the subsequent inadequate investigation.

73. The Government considered this claim unsubstantiated and excessive.

74. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 8,000 under this head, plus any tax that may be chargeable on that amount.

B. Costs and expenses

75. The applicant claimed 790 US dollars (USD) in respect of costs incurred by the European Roma Rights Centre in the domestic proceedings and USD 8,325 for those incurred in the proceedings before the Court (111 hours of work at an hourly rate of USD 75). In addition, the applicant claimed a total of EUR 6,600 (110 hours at an hourly rate of EUR 60) in respect of costs incurred by the lawyer in preparing the constitutional complaint at the domestic level as well as those incurred during the Court proceedings.

76. The Government contested these claims as excessive.

77. According to the Court's established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). Taking into account all the materials in its possession, the Court makes an award of EUR 6,000 under this head, plus any tax that may be chargeable on that amount.

C. Default interest

78. The Court considers it appropriate that the default interest 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. Holds that there has been a violation of Article 3 of the Convention;

2. Holds that no separate issue arises under Article 8 or Article 13 of the Convention;

3. Holds that there has been a violation of Article 14 taken in conjunction with Article 3 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 which are to be converted into the national currency of the respondent State at a rate applicable at the date of settlement:

(i) EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage;

(ii) EUR 6,000 (six thousand euros) in respect of costs and expenses;

(iii) any tax that may be chargeable on the above amounts;

(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 31 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis Registrar President