FIRST SECTION

DECISION

Application no. 4955/15 M.M. against Croatia

The European Court of Human Rights (First Section), sitting on 22 October 2019 as a Chamber composed of:

Krzysztof Wojtyczek, President, Ksenija Turković, Aleš Pejchal, Pauliine Koskelo, Tim Eicke, Jovan Ilievski, Raffaele Sabato, judges, and Renata Degener , Deputy Section Registrar ,

Having regard to the above application lodged on 8 January 2015,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr M.M., is a Croatian national, who was born in 1958 and lives in Zagreb. The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Ms L. Horvat, a lawyer practising in Zagreb.

2 . The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Sta ž nik.

A. The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background of the case

4 . The applicant ’ s son, L., born in 1992, was diagnosed with Crohn ’ s disease and has received treatment in the form of corticosteroid therapy.

5 . In October 2012 L. was found in possession of one hand-rolled cigarette containing marijuana. A criminal complaint lodged against him in that regard was subsequently dismissed because the quantity of drugs found had been very small and only resulted in an insignificant criminal offence.

6 . According to the applicant, on the night of 26 March 2013, L. came into his parents ’ bedroom, crying out to his father and shouting at his mother, stating that she had “ruined his life”. On the next evening, L. broke a window by throwing a chair. The applicant and his wife were worried that L. ’ s strange behaviour was because of drugs.

7 . On 28 March 2013 L. ’ s mother saw their family doctor and said that she was worried about L. because he had stopped having his treatment by corticosteroid therapy and admitted that he was occasionally using marijuana. The doctor referred her to the Mental Health Centre and made an appointment for the following day so that she and the applicant could go in for counselling and decide on any further steps.

2. The disputed event and criminal proceedings against L.

8 . On the evening of 28 March 2013 the applicant spoke with his son, at which point L. started shouting, so the conversation stopped. Worried that his son had again taken drugs, the applicant called the emergency services operator asking for an intervention, saying he was having problems with his son. Police officers M.R. and D.P. arrived soon thereafter. The applicant met them in the yard some one hundred metres away from his house. The exact content of the conversation which ensued is in dispute between the parties.

9 . According to the applicant he told the police officers that his son had taken drugs and had been shouting. He asked them whether an ambulance was going to come to take L. to a psychiatric institution. The police officers replied that an ambulance was called only for heavily intoxicated individuals or those in a coma. Since L. had fallen asleep in the meantime, the applicant told the police officers not to wake him up and ultimately agreed that there was no further need for their intervention.

10 . According to the official police report, the applicant told the police officers that in the past few days he had had disagreements with his son. The relevant part of the official police report reads as follows:

“... L. has been acting strangely, in that he has been saying things that have nothing to do with anything and [the applicant] is worried. They also had a conversation tonight, after which L. went to sleep in his room and [the applicant] called the police because he just wanted to talk to someone about his son not listening to him ... We advised [the applicant] to try and speak to his son and have him seek medical help. We also asked him whether there had been any domestic violence, which he denied, adding that L. was now asleep and that we should not wake him to talk to him in order not to upset him because he had not really done anything requiring police intervention but [the applicant] was simply looking for advice and conversation. We also inquired whether he wanted us to call an ambulance but he refused, saying that he would ask his doctor to examine him and help him to get further treatment ...”

11 . Since there was no need for further police intervention, the police officers left the applicant ’ s house.

12 . The next morning, on 29 March 2013, L. stabbed his mother and grandmother to death. Criminal proceedings were instituted against him on two charges of aggravated murder. A psychiatric report, commissioned for the purposes of the criminal proceedings, established that he suffered from paranoid schizophrenia. He was placed in a psychiatric institution.

13 . During these proceedings the applicant gave a statement that on 28 March 2013 at about 11.00 p.m. he had called the police because of his son ’ s strange behaviour. Soon thereafter he had met with two police officers about a hundred metres from his home since he had not wanted to upset his son by the presence of the police. The applicant had told the officers that his son had taken some drugs and should be taken to a psychiatrist. However, one of the officers had replied that only addicts in a serious condition were taken to psychiatric institutions. To a question put by the officers the applicant had responded that his son had not been violent but that “there had been shouting” and that his son had broken a window on the day before. The applicant had expected an ambulance to arrive, which had not happened, and since his son had fallen asleep he had told the police officers not to wake him up, whereupon they had concluded that there was no need for their intervention. The applicant also stated that L. had never threatened to kill his mother, but had told her that she was “trash” and that he was “disgusted by her”.

3. Criminal proceedings against the police officers

14 . On 14 July 2014 the applicant lodged a criminal complaint against police officers M.R. and D.P. as well as against the head of Z. police, N.P., on charges of abuse of their office and authority. He alleged that they had not properly reacted to his reporting that his son had serious mental problems and had been using drugs. The officers had dissuaded the applicant from calling an ambulance and placing his son in a psychiatric institution, claiming that such placements were reserved for cases of serious abuse of drugs or for persons in a coma.

15 . On 2 February 2015 the State Attorney ’ s Office for Combatting Corruption and Organised Crime (“the State Attorney ’ s Office”) dismissed the applicant ’ s complaint on the grounds that there was no indication that the police officers had committed the criminal offence alleged or had otherwise not fulfilled their duties. During its enquiries, the State Attorney ’ s Office had obtained the recording of the applicant ’ s conversation with the emergency services operator on the eve of the events. The relevant part of its decision reads as follows:

“Given the contradiction between the statements given by [the applicant] and [police officers M.R. and D.P.], including the official police report, recordings of the communications on the night in question have been obtained.

It transpires from those recordings that [the applicant] called [the emergency services operator] and said that his son was under the influence of drugs, that [the applicant] did not know what [to do] or how [to do it], that this had never happened before, and the operator asked him whether he wanted to speak to the police. [The applicant] replied that he did not know whether he wanted the police or an ambulance. The operator then asked whether his son was in a coma, [the applicant] replied that he was not, that two or three days ago they had noticed that he had changed his behaviour and that he had just arrived home. Thereafter, the operator connected him to the police and [the applicant] told a police officer that his son was ‘ high on drugs ’ , that it was ‘ the first time such a situation [had occurred] ’ , that a few days previously [L.] had changed his behaviour and that he did not know whether to take him to a hospital but that he thought that [L.] would not agree to that. Then the police officer took the personal information of [the applicant and L.] and their address and asked [the applicant] whether his son was currently making a mess at home, and [the applicant] replied that he was not, that [the applicant] had just tried to speak with him, that L. had shouted, that he had moved away, that his son had had an outburst directed at his mother on the previous day, that ‘ he had made a little mess and so on ’ . Also, the police officer asked [the applicant] whether he knew which drug L. was taking, who had provided him with it, where he was taking it, and [the applicant] said that he had no idea, that he knew that sometimes [L.] smoked ‘ pot ’ , that he did not know about any other drugs, that this had only recently started, that his son had Crohn ’ s, that he had stopped taking his pills, that he had been a normal boy, that he had been studying in [Z.], but then he had become ill, so he was on a break, so it must have been be psychological pressure. After that, the police officer took [the applicant ’ s] telephone number and said he would send his colleagues out to his address and that they would see how to proceed.

Further, from the recordings of the evening in question it is evident that the police officer called another police officer afterwards, gave that officer their personal information and said that [the applicant] had called in to say that his son had taken some drugs, that he was shouting in the house, and that he had made a scene at home on the previous day and that they should attend.

After the above, the police officer reported on his return what had been established and said that they had established that ‘ that one ’ would be ‘ discussing with his dad ’ , that the father had told the officer that his son was taking drugs and ‘ he ’ denied it, that he had mentioned a doctor and that he could go to get treated in the centre and that is all. The operator then asked whether there had been any violence and the police officer said that there had not ...

Also, in relation to the intervention of the police officers on the evening in question the recording of [the applicant ’ s] report after the murder is particularly pertinent: when [the applicant] again called [the emergency services operator], the operator connected him to the police to whom [the applicant] reported the murders and, among other things, said that the night before there had been ‘ some patrol ’ and the police officer asked him, among other things, whether there had been any police and whether they had seen anything and [the applicant] replied that ‘ there were no problems, the police are absolutely not to be blamed ’ .”

4. Access to information

16 . In September 2013 the applicant requested the emergency services operator to provide him with a copy of his call made to them on the night of 28 March 2013 (see paragraph 8 above).

17 . On 26 September 2013 the director of that service informed the applicant that under domestic law all information and recordings of calls to and from the emergency services operator were classified as “restricted” and that access to such information was only allowed to a certain number of state officials in the performance of their official duties. He also stated that the operator would allow access to the requested information on the basis of a request by a judge or other competent body, in line with the legislation in force.

18 . On 27 September 2013 the applicant lodged a request for evidence to be secured with the Z. Municipal Court. He sought that the recording of his telephone call of 28 March 2013 to the police be secured in order to assess whether he had sufficient grounds to bring a civil action against the State for the alleged failure of the police to ensure the right to life for his wife and mother.

19 . On 28 November 2013 the Municipal Court accepted the applicant ’ s request and obtained the recording of that telephone call.

20 . The applicant subsequently requested the Municipal Court to provide him with a copy of the recording. His request was refused due to a clear sign “copying prohibited” placed on the recording. In his reply to the applicant ’ s request dated 18 June 2014, the President of the Municipal Court pointed out that there were no obstacles to the applicant instituting civil proceedings, emphasising that he would be able to ask for and use the recording as evidence in such proceedings, once he actually decided to institute them.

5. Civil proceedings

21 . On 27 June 2016 the applicant lodged a civil claim in damages against the State with the Z. Municipal Court for the death of his wife and mother. He proposed that the recording of his call to the emergency services operator be used as evidence in the proceedings.

22 . In its reply to the claim dated 19 September 2016, the State denied responsibility for any damage incurred.

23 . The court scheduled a hearing for 21 September 2016.

24 . On 7 September 2016 the applicant ’ s lawyer requested that the hearing be postponed owing to her unavailability to attend. In addition, she also proposed that the Municipal Court stay the proceedings ( prekid postupka ) in view of the applicant ’ s pending case concerning the same matter before the Court, claiming that it concerned a “preliminary issue” which would be decisive for the outcome of the applicant ’ s civil case before the national courts.

25 . On 11 January 2017 the Z. Municipal Court accepted the applicant ’ s proposal and stayed the proceedings until the conclusion of the case before the Court, stating that:

“... given the nature of the claim, since the court in the present case also has to establish whether there has been a failure of the State authorities – in that they knew or ought to have known that there had been a threat to the lives of the applicant ’ s family members on 29 March 2013 – this court considers it expedient to stay the civil proceedings in this case pending the outcome of the aforementioned proceedings [in application no. 4955/15], which [the applicant] instituted before the European Court of Human Rights ...”

26 . The above decision was quashed on appeal.

27 . The applicant then sought a temporary stay of the proceedings ( zastoj postupka ) on the basis of section 186 of the Civil Procedure Act, with a view to reaching a settlement in the case. On 20 April 2018 the Municipal Court stayed the proceedings for one year.

28 . In the applicant ’ s submission to the Court dated 18 March 2019, his lawyer urged the Court to adopt a decision in the case, without which “the applicant cannot prove the responsibility of the State”.

B. Relevant domestic law

29 . The relevant provisions of the Croatian Constitution, the Obligations Act and the State Administration Act, as in force at the material time, have been cited in Branko Tomašić and Others v. Croatia (no. 46598/06, § § 18 , 22 and 23, 15 January 2009).

30 . The relevant provisions of the Civil Procedure Act ( Zakon o parni č nom postupku , Official Gazette nos. 53/91 with subsequent amendments), as in force at the material time, provided as follows:

Contents of a civil action

Section 186

“A civil action must contain a specific claim setting out the merits and incidental claims, the facts on which the claimant bases the claim, evidence to determine those facts and all other information which every submission must contain ...”

Preservation of evidence

Section 272

“If there is a justified risk that obtaining certain evidence will become impossible or more difficult, it may be proposed that such evidence be obtained during or before the institution of civil proceedings.”

31 . In its decision U-III-2314/2006, delivered on 21 February 2007, the Constitutional Court ( Ustavni sud Republike Hrvatske ) held as follows:

“The Constitutional Court reiterates that in order for State liability for damages within the meaning of section 13 of the State Administration Act to come into play, three conditions must be fulfilled cumulatively: firstly, there must be an unlawful or irregular action of a public authority ...; secondly, there must have been damage caused to the applicants; and thirdly, there must be a causal link between the unlawful or irregular action of the public authority and the damage caused to the applicants (whereby it is important to prove that the damage incurred was as a direct consequence of the unlawful or irregular action of the public authority, that is, that the damage would not otherwise have occurred). ...

The competent courts were wrong to consider that the Republic of Croatia ’ s liability for damages only comes into play where there is a will or acceptance to cause damage to a third party through the unlawful or irregular actions [of the public administration], or, in other words, that without the element of intent there is no unlawful or irregular action on the part of a public administration body within the meaning of the first condition for State liability for damage in section 13 of the State Administration Act.

In that connection, the Constitutional Court points out that the State Administration Act has established a system of strict (objective) liability in respect of the Republic of Croatia as regards damage caused by the unlawful or irregular actions of the state administration and public bodies; this system is based on the principle of causality (causa) and not guilt (culpa).

The primary and direct liability of the State for damage incurred as a result of unlawful or irregular actions taken by the state administration and public bodies is a specific manifestation of the rule of law, which is one of the highest values of the constitutional order of the Republic of Croatia as set out in Article 3 of the Constitution. ...”

32 . In its decision U-III-5624/2013, delivered on 24 November 2016, the Constitutional Court held as follows:

“In the proceedings [before the ordinary courts] the subject-matter of the dispute was the applicant ’ s claim for damages against the Republic of Croatia for injuries she had suffered as a result of a gunshot caused by the irregular actions of police officers ...

In Bljakaj and Others v. Croatia , the ECHR found a violation of Article 2 of the Convention ... having concluded that the police had failed to promptly react to objective signs of danger posed by an individual for society as a whole, which then materialised as a murder ...

Fully accepting the conclusions in Bljakaj and Others and applying them to the present case, the Constitutional Court considers that the general conclusions of the ECHR, as regards the State ’ s positive obligations to protect the lives of persons under its jurisdiction in terms of the appropriateness of the police reaction referred to in the said judgment, which relates to the same tragic event [as the present case], are the opposite of the conclusions reached in relation to the same matter by the competent courts.

In light of the above, the Constitutional Court considers that the reasoning set out in the [competent] courts ’ judgments did not provide sufficient, relevant or convincing reasons for finding a lack of a causal link between the unlawful or irregular work of the State agents, the impugned act and the damage incurred ...

Viewing the proceedings as a whole, the Constitutional Court considers that the impugned judgments of the lower courts and the Supreme Court violated the applicant ’ s right to a fair hearing as guaranteed by Article 29 § 1 of the Constitution.”

33 . In its decision Rev-844/2016-2, published on 16 July 2019, the Supreme Court ( Vrhovni sud Republike Hrvatske ) held as follows:

“The subject-matter of the dispute in this case is the claimants ’ claim for compensation for pecuniary and non-pecuniary damage allegedly caused by the State as a result of unlawful or irregular action taken by police officers, causing the death of their son ...

Section 127 of the Police Act ... provides for the Republic of Croatia to be liable for damage that a police officer ... causes to third parties, unless it is proven that the police officer has acted in line with the regulations on the performance of police duties.

Furthermore, the Republic of Croatia is liable within the meaning of section 13 of the State Administration Act ... for damage caused to citizens, legal entities or other parties as a result of unlawful or irregular actions taken by public administration bodies....

In order to establish liability on the part of the Republic of Croatia, within the meaning of the said provision, the following conditions must be met: 1) the existence of an unlawful or irregular action of a public administration body ...; 2) incurred damage and 3) a causal link between the impugned action and the damage incurred.

An unlawful action is any act contrary to the provisions and principles set out in the laws in force, while an irregular action means any act contrary to the rules of the relevant profession, and which is not in line with the usual working methods of a public authority, as well as any steps taken which contravene [that authority ’ s own] aims or conduct contrary to the general requirement to act in the public interest in the course of the normal performance of its duties or activities. ...”

COMPLAINTS

34 . The applicant complained under Article 2 of the Convention, taken alone and in conjunction with Article 13, that the State had not satisfied its positive obligation to protect the lives of his wife and mother.

35 . The applicant further complained under Article 6 § 1 of the Convention that his right of access to court had been unduly restricted because of the authorities ’ refusal to provide him with the evidence requested.

THE LAW

36 . The applicant relied on Articles 2, 6 and 13 of the Convention, which, in so far as relevant, read as follows:

Article 2

“1. Everyone ’ s right to life shall be protected by law...”

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

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 ’ arguments

37 . The Government argued that the applicant had failed to exhaust domestic remedies in that he had never brought a civil action in damages against the State before lodging his complaints with the Court. In those proceedings the domestic courts would have been called upon to examine whether there had been any failures on the part of the police and whether there had been a causal link between the conduct of the police officers and the death of the applicant ’ s wife and mother.

38 . Once they became aware of the fact that in the meantime the applicant had brought a civil action in damages against the State, the Government noted that he had done so only after the exchange of the parties ’ observations in this case, which showed that the applicant also believed that such proceedings were an adequate course of action for his grievances.

39 . The applicant disagreed with the Government. Relying on the Court ’ s findings in Branko Tomašić and Others v. Croatia (no. 46598/06, §§ 41-44, 15 January 2009) and Skendžić and Krznarić v. Croatia (no. 16212/08 , § § 67-69, 20 January 2011) , he argued that he did not have to file a civil claim in damages against the State owing to the uncertainty of its outcome and high litigation costs. He had filed a criminal complaint against the police officers and, as soon as he realised that the State was not going to prosecute them, he had lodged an application with the Court within the six-month time-limit.

B. The Court ’ s assessment

40 . The Court reiterates that the principle of subsidiarity is one of the fundamental principles on which the Convention system is based. It means that the machinery for the protection of fundamental rights established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention does not lay down for the Contracting States any given manner for ensuring the effective implementation of the Convention within their internal law. The choice as to the most appropriate means of achieving this is in principle a matter for the domestic authorities, who are in continuous contact with the vital forces of their countries, and are better placed to assess the opportunities and resources afforded by their respective domestic legal systems (see, for example, Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 90, ECHR 2007-I).

41 . In accordance with Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among many other authorities, Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 (extracts)). Thus, a complaint submitted to the Court should first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. To hold otherwise would not be compatible with the subsidiary character of the Convention system (see Gavril Yosifov v. Bulgaria , no. 74012/01, § 42, 6 November 2008). The obligation to exhaust domestic remedies requires only that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 71, 25 March 2014; Balogh v. Hungary , no. 47940/99, § 30, 20 July 2004; and Sammut and Visa Investments Limited v. Malta (dec.), no. 27023/03, 28 June 2005).

42 . In this connection the Court reiterates that, in respect of a substantive complaint under Article 2 of the Convention of an alleged failure of the State to take adequate positive measures to protect a person ’ s life, the possibility of obtaining compensation for the death of a person will generally, and in normal circumstances, constitute an adequate and sufficient remedy (see Branko Tomašić and Others , cited above, § 38, and the cases cited therein).

43 . In the present case the applicant blames the police for not taking all reasonable and adequate steps in order to prevent the killing of his wife and mother. He initially sought to convince the Court that he was prevented from instituting civil proceedings against the State due to the authorities ’ refusal to grant him access to the recording of his call to the emergency services operator. However, in June 2016, after the exchange of observations in the context of the proceedings before the Court, the applicant nonetheless brought a civil action in damages against the State. He informed the Court of those proceedings only in March 2019 (see paragraph 28 above).

44 . Without going into the possible consequences of the applicant ’ s failure to inform the Court in a timely manner of the developments in his case, the Court observes as follows.

45 . The applicant ’ s civil claim currently pending before the Z. Municipal Court concerns non-pecuniary damage that he allegedly suffered owing to the police ’ s failure to prevent the death of his wife and mother (see paragraph 21 above). In other words, it is precisely in those proceedings that the domestic courts will be called upon to examine – under domestic law and under the Convention, which is directly applicable in Croatia – the State ’ s responsibility for any failure on the part of its organs to prevent the tragic events of 29 March 2013 (see paragraph 25 above).

46 . It is true that in Branko Tomašić and Others the Court did not consider that the applicants had to bring a civil action in order to exhaust domestic remedies. However, unlike the present case, in Branko Tomašić and Others the central question had been the alleged deficiencies of the national legal framework for the protection of the lives of others from acts of dangerous criminals (see Branko Tomašić and Others , cited above, §§ 39-42). The Court also notes that the additional factors relied on for not accepting a civil action as a remedy to be exhausted in Branko Toma š i ć (cited above, § 41) no longer apply, as it has been clarified through the evolution of the domestic jurisprudence that the liability of the State was actually objective (strict), provided that unlawful or irregular action on part of the State administration and its causal link to the damage incurred be established (see paragraphs 31, 32 and 33 above; see also Bljakalj and Others v. Croatia , no. 74448/12 , § 76 , 18 September 2014 ). Furthermore, the fact that the Court found in Skendžić and Krznarić (cited above) – a case concerning the State ’ s procedural obligation to effectively investigate the disappearance of the applicants ’ relative at the hands of the police – that the applicants could still claim to be victims despite having being awarded civil compensation does not necessarily imply that in the circumstances of the present case, which concerns the loss of life as the result of the actions of a private person, the applicant was altogether dispensed from bringing a civil action against the State.

47 . The applicant is therefore erroneous in suggesting that “he needs the Court ’ s judgment in order to prove the responsibility of the State at domestic level” (see paragraph 28 above). Instead, what he needs to do – and indeed has already done – is first to submit all his arguments before the domestic courts, thereby giving them the opportunity to rectify any possible violation of Article 2 of the Convention. Only after those proceedings have come to an end can the applicant have recourse to an international organ such as the Court (see, mutatis mutandis , Bljakaj and Others , cited above , §§ 141-42 ).

48 . The same conclusion applies as regards the applicant ’ s Article 6 complaint. The Court considers that any complaint concerning the potential unfairness of civil proceedings, including the lack of access to evidence, can be made and assessed only after those proceedings have ended at the domestic level (see, for instance, Vojnovi ć v. Croatia (dec.), no. 4819/10, 26 June 2012).

49 . In view of the above, at this stage, the applicant ’ s complaints under Articles 2 and 6 are premature and must be rejected under Article 35 §§ 1 and 4 of the Convention.

50 . Lastly, in so far as the applicant complains under Article 13 of the Convention that he had no effective remedy at his disposal, even assuming that the applicant might have an arguable claim under Article 2 of the Convention, the Court observes that the applicant could, and did, institute criminal proceedings against the police officers and lodge a civil claim in damages against the State (compare Bljakaj and Others , cited above , §§ 141-42 ) . Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 November 2019 .

Renata Degener Krzysztof Wojtyczek Deputy Registrar President