FIRST SECTION

DECISION

Application no. 37517/16 Feliks KAMIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 28 September 2021 as a Committee composed of:

Péter Paczolay, President, Gilberto Felici, Raffaele Sabato, judges, and Liv Tigerstedt, Deputy Section Registrar,

Having regard to the above application lodged on 23 June 2016,

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 Feliks Kamić, is a Croatian national who was born in 1948 and lives in Dubrovnik. He was represented before the Court by Mr V. Gjenero and Mr S. Jakšić, lawyers practising in Dubrovnik.

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

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

4. On 12 January 2012 the police received an anonymous complaint by a parent alleging that the applicant had threatened children holding a hand grenade after they had thrown firecrackers into his back yard.

5 . At the request by the police, on 13 January 2012 the Dubrovnik Minor Offences Court ( Prekršajni sud u Dubrovniku ) ordered an urgent search of the applicant’s house, relying on the information in the anonymous complaint, with a view to finding explosive devices. The search was carried out by the police on the same day from 4.25 p.m. to 5.10 p.m. in the presence of two witnesses. The applicant was informed of his right to have a defence lawyer present, but he refused one. He was found in possession of several parts of duly registered deactivated weapons, including two bombs, which he used as ashtrays. Both him and the witnesses signed the record of the search without raising any objections as to its findings.

6. Nothing was seized from the applicant and no proceedings were instituted against him, since the police concluded that the search had not discovered any items of relevance to any sort of minor-offence or criminal proceedings and the anonymous complaint had not specified any further witnesses.

7. On 4 July 2012 the applicant and his wife brought a civil action against the State seeking damages for the allegedly unlawful and unjustified search of their home.

8. On 9 June 2014 the Dubrovnik Municipal Court ( Općinski sud u Dubrovniku ) granted their claim, finding that there had not been a probable cause to believe that the applicant had committed any punishable offence. The search had been ordered merely on the basis of the anonymous complaint, lodged seventeen days after the alleged event, and without any further inquiries, such as questioning the applicant’s neighbours or other possible witnesses.

9 . Following an appeal by the relevant State Attorney’s Office, on 22 October 2014 the Dubrovnik County Court ( Županijski sud u Dubrovniku ) reversed the first-instance judgment and dismissed the applicant’s civil action. It held that the anonymous complaint had been sufficient to provide a probable cause to believe that the applicant had committed an offence warranting the search of his home. The lapse of time between the alleged incident and the submission of the complaint had not been unreasonable, considering that there had been school holidays and that the parents had understandably been concerned about the safety of their children when classes were to be resumed.

10. The applicant’s subsequent constitutional complaint, in which he relied on Article 34 of the Constitution guaranteeing the inviolability of the home, was dismissed by the Constitutional Court ( Ustavni sud Republike Hrvatske ) on 27 April 2016 (decision served on 6 May 2016), endorsing the reasoning of the Dubrovnik County Court.

11. Meanwhile, in July 2013, on the basis of another anonymous complaint alleging that the applicant was engaged in the unreported letting of his house to tourists, the relevant Dubrovnik State Inspectorate Office asked the Dubrovnik Minor Offences Court to order a search of the applicant’s house. The search, carried out by the police on 19 July 2013, found that the allegations in the anonymous complaint were unfounded. The applicant did not institute any proceedings in this connection.

12. The relevant parts of sections 158 and 159 of the Minor Offences Act ( Prekršajni zakon, Official Gazette no. 107/2007), as in force at the material time, provided that authorised persons from State administration bodies acting within the framework of their competence, upon suspicion that a minor offence had been committed, should take the necessary steps in order to, inter alia , discover and secure any traces of such an offence and items that might serve to establish the facts. Furthermore, even before minor-offence proceedings were instituted, they could request the court to order an urgent search of a dwelling and other premises. The search of premises should be performed by applying mutatis mutandis the relevant provisions of the Code of Criminal Procedure.

13 . The relevant parts of Articles 211 and 213 of the Code of Criminal Procedure ( Zakon o kaznenom postupku , Official Gazette no. 110/97, with subsequent amendments), as in force at the material time, provided that a search had to be carried out in a manner that entailed the least possible violation of internal regulations and disturbance of citizens. Before the commencement of the search, the search warrant had to be given to the person whose premises were to be searched and that person was to be instructed of his or her right to notify a defence lawyer. The search had to be carried out during the daytime , between 7 a.m. and 9 p.m. Two adult citizens had to be present simultaneously as witnesses during the entire search. The witnesses were to be instructed to observe how the search was carried out and were entitled, before the record of the search was signed, to record their objection if they were of the opinion that the search had not been carried out in accordance with the provisions of the Code or that the contents of the record were incorrect. A search record was to be drawn up and signed by the person whose premises had been searched and by the persons whose attendance at the search was obligatory. Only objects and documents related to the purpose of the relevant search could be temporarily seized during the course of the search.

14 . Pursuant to the relevant parts of sections 5-7 and 91 of the Weapons Act ( Zakon o oružju , Official Gazette nos. 63/2007 and 146/2008), explosive weapons (all types of bombs, mines, grenades and other devices charged with an explosive substance or a detonator) are considered to be “category A” weapons and are classified as prohibited. A fine in an amount between 10,000 Croatian kunas (HRK) and HRK 100,000 or a prison sentence of up to sixty days may be imposed if a natural person unlawfully possesses a weapon prohibited by this Act.

15 . Section 14 of the State Administration Act ( Zakon o sustavu državne uprave, Official Gazette no. 150/2011) provides that the State is liable to provide compensation for damage caused to a citizen, legal entity or other party by the unlawful or wrongful conduct of a State authority.

COMPLAINT

16. The applicant complained under Article 8 of the Convention that the searches of his home on 13 January 2012 and 19 July 2013 had been unlawful and unjustified.

THE LAW

17. The applicant relied on Article 8 of the Convention, which reads as follows:

“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.”

18. The Government argued that the applicant had not properly exhausted domestic remedies. As regards the search carried out on 13 January 2012, he had not actually complained of a violation of the right to respect for the home in his constitutional complaint. In relation to the search carried out on 19 July 2013, he had never instituted any proceedings complaining of the unlawfulness of that search, whereas he could have instituted civil proceedings against the State and sought damages in accordance with section 14 of the State Administration Act. Lastly, the Government argued that the interferences complained of had in any event been justified as being lawful measures which had pursued a legitimate aim and had been necessary in a democratic society.

19. The applicant reiterated that he had properly exhausted domestic remedies in respect of the first search and did not comment exhaustion concerning the second search. He maintained that the searches complained of had not been justified. The first search had been carried out on the basis of an anonymous complaint, without any other relevant action having been taken by the police in order to ascertain whether further evidence had been available. It had also been unlawful because the two witnesses had not been present at the same time in each room. Lastly, the applicant complained of serious repercussions on his reputation as a result of the searches, considering that he had been a retired civil servant and that, at the relevant time, his wife had been serving as a public official in the local administration.

20. The Court does not need to examine all the preliminary objections raised by the Government, since the application is in any event inadmissible for the following reasons.

21. The relevant principles concerning searches have been summarised in Doroż v. Poland (no. 71205/11, §§ 22-25, 29 October 2020).

22. As regards the search of 13 January 2012, while it had amounted to an interference with his right to respect for his home, the search had a basis in section 159 of the Minor Offences Act (see paragraph 12 above), and had been ordered in the context of an investigation into the applicant’s alleged possession of prohibited weapons (see paragraph 14 above), thereby pursuing the legitimate aim of “prevention of disorder or crime”.

23. As regards the proportionality of the measure complained of, the Court notes that the search of the applicant’s home was based on prior judicial authorisation, which was an important safeguard against abuse. According to section 159 of the Minor Offences Act (see paragraph 12 above), the competent administrative bodies could request the court to allow the urgent search of premises if there was a suspicion that a minor offence had been committed. It is apparent from the case file that the applicant was suspected of possessing explosive weapons and that the Dubrovnik Minor Offences Court accepted the arguments presented in the request submitted by the police, which relied on the content of the anonymous complaint (see paragraphs 4 and 5 above).

24. The Court is further satisfied that the Dubrovnik Minor Offences Court had sufficient evidence before it capable of giving rise to the belief that dangerous prohibited weapons might have been found in the applicant’s house. The Court emphasises in this connection that the facts which raise such suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see, for example, Hildebrand v. Germany , no. 31513/96 , Commission decision of 16 April 1998, unreported, and Ratushna v. Ukraine , no. 17318/06, § 77, 2 December 2010).

25. The applicant contested the credibility of the anonymous complaint because it had been lodged some twenty days after the alleged event and because the police had not examined whether further evidence concerning his allegedly unlawful conduct was available. However, the Court observes that the appeal court has already provided a satisfactory explanation on this point (see paragraph 9 above). The Court further reiterates that, in situations where the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party, they are obliged to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman v. the United Kingdom , 28 October 1998, § 116, Reports of Judgments and Decisions 1998 ‑ VIII). Having regard to the allegations in the anonymous complaint, namely that the applicant had threatened children while holding a hand grenade, and the fact that there had been no indication of any potential witnesses, the search warrant appears to have been the only effective means of establishing, with a view to avoiding the possible risk of harm to others, whether he had in fact been in possession of dangerous explosive devices.

26. With respect to the manner in which the search was performed, the Court observes that the search order set out appropriate limits for its scope, that the applicant was informed of his right to a lawyer and that two witnesses were present, as required by domestic law. All persons present, including the applicant, signed the record of the search without having raised any objections (see paragraph 5 above). Furthermore, the entire search lasted less than one hour, the police officers did not search the inside of any closed furniture and nothing was seized from the applicant. It follows that the search at issue was carried out in line with the relevant domestic law (see paragraphs 12 and 13 above).

27. The Court therefore concludes that the search carried out on 13 January 2012 was not disproportionate to the legitimate aim pursued and was attended by adequate safeguards against abuse and arbitrariness. The interference can accordingly be regarded as “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention.

28. It follows that this part of the application is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4.

29. As regards the search of the applicant’s home carried out on 19 July 2013, it appears that he never raised any complaint in this respect at the domestic level. The Court accepts the Government’s assertion that the legal avenue under section 14 of the State Administration Act had been sufficiently available and certain, both in theory and in practice, and offered the applicant reasonable prospects of success.

30. That being so, and having regard to its case-law (see, for example, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 77, 25 March 2014), the Court considers that the Government’s objection regarding the exhaustion of domestic remedies in respect of the second search must be upheld.

31. It follows that the applicant’s complaint relating to the search of his house carried out on 19 July 2013 is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 October 2021. _1} {signature_p_2}

Liv Tigerstedt Péter Paczolay Deputy Registrar President