Communicated on 14 December 2015

SECOND SECTION

Application no. 66895/10 Rizo ALKOVIĆ against Montenegro lodged on 9 November 2010

STATEMENT OF FACTS

The applicant, Mr Rizo Alković , is a Montenegrin national, who was born in 1960 and lives in Podgorica. He was represented before the Court by Ms A. Jasavi ć , a lawyer practising in Podgorica.

A. The circumstances of the case

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

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. Due to constant attacks, in some of which his car and the apartment had been damaged, and the perpetrators of which had never been found, the applicant installed a camera outside his apartment.

1. The events between 26 May and 22 September 2009 and the ensuing proceedings

On 26 May 2009 one of his neighbours, X, left the next-door apartment, and went to his car, from which he took a gun. Another neighbour, Y, said “turn it to the left”, in the direction of the applicant ’ s terrace, which was followed by 9-10 gun shots. Hearing the shots, the applicant ’ s daughter became scared and turned off the lights. Y called out “so, you went to bed, you Muslim motherfucker” (“ jesi li lega , majku ti tursku jebem ”). X, Y and Y ’ s family afterwards collected bullets shells from the ground.

On 9 September 2009 three neighbours, V (X ’ s wife), S and B, were talking on the next-door terrace. V said that she was fighting “cockroaches, frogs, nits and lice, and all sorts of other things”, which were brought by “those dirty gipsies” (“ od ovija gabelj č ina ” ). 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 “hers wore 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 š to god prije stigne ). V said loudly “An axe, neighbour, an axe, a sledge hammer, like it is used for pigs”.

On 15 September 2009 X and Y had a heated discussion with another neighbour, in which X said, among other things, “do not do it or I will black out and kill both you and your brother here” pointing at the applicant ’ s apartment, calling the applicant “dirty gipsy” (“ cigane glibavi ”) and “trash” (“ ovo sme ć e ”).

On 22 September 2009, the day of Ramadan Bayram , a religious holiday, celebrated by the applicant and his family, a large cross was drawn across his apartment door, and a large message was written on the wall next to it saying “move out or you ’ ll regret it bitterly” ( seli se, usko ć e ti biti ). 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 from the building.

On 18 November 2009 the applicant lodged a criminal complaint with the High State Prosecution ( Vi š e dr ž avno tu ž ila š tvo ) 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 mr ž nje , razdora i netrpeljivosti , hereinafter “hate crime”) in connection with racial and other discrimination (see B.1 below). He also enclosed the relevant video material.

On 24 November 2009 the High State Prosecution rejected the complaint on the ground that there were no elements of hate crime or any 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 been forwarded to the State Prosecution ( Osnovno dr ž avno tu ž ila š tvo ) for assessing if there were any elements of the criminal offence of jeopardising someone ’ s security ( ugro ž avanje sigurnosti ).

On 14 December 2009 the applicant filed a request for investigation ( zahtjev za sprovo Ä‘ enje istrage ) with the High Court ( Vi Å¡ i sud ) in Podgorica. He enclosed the relevant videos, and proposed hearing of a number of neighbours, including those he suspected.

On 17 March 2010 the High Court dismissed the said request for lack of evidence. In particular, the submitted video material was considered to be inadmissible, having been obtained without a prior court order to that effect, and 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 event of 22 September 2009 nor had he called the police at the time to come to the scene and “exempt the necessary material, which would be further analysed” in order to verify his suspicions.

On 26 March 2010 the applicant appealed against this decision. He submitted, in particular, that on 22 September 2009 he actually had 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.

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

On 19 July 2010 the applicant lodged a constitutional appeal. He maintained, inter alia , that because of the failure of domestic bodies to protect him and his family they had had to move out of the apartment. He invoked the right to private life, the right to an effective domestic remedy, and the prohibition of discrimination.

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 was no violation of any of them.

There is nothing in the case-file as to if, and how, the State Prosecution dealt with the case-file transmitted by t he High State Prosecution on 24 November 2009.

2. Other relevant facts

The applicant also reported to the police the following events, but to no avail: (a) on 6 October 2008 an unknown person threw a brick and broke one of the windows of the applicant ’ s apartment; (b) on 11 September 2009 S and her husband, Z, apparently tried to hit the applicant ’ s parked car with their own car; (c) on 16 October 2009 S asked Y aloud if he was going to slaughter, and he answered that he was, both looking at the applicant; S said that he would “make [his] car dirty with that man”; (d) o n 19 December 2009 an unknown person 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) o n 1 January 2010, shortly after midnight, X threw firecrackers at the applicant ’ s car and broke its windscreen; he also threw a glass bottle at the applicant, and a metal bar at his son, swearing heavily and threatening to slaughter them all; this was followed by gun shots.

On 24 April 2010 the Court of First Instance ( O snovni sud ) in Podgorica found the applicant guilty of unauthorised recording of and eavesdropping ( prislu š kivanje ) on Y and sentenced him to 40 days ’ imprisonment, suspended for a period of one year. This judgment was upheld by the High Court on 15 October 2010. On 26 December 2012 the Constitutional Court dismissed the applicant ’ s constitutional appeal in this regard.

On 7 May 2010 the applicant was fined 800 euros (EUR) in minor offence proceedings ( prekr š ajni postupak ) for threatening V ( izazivanje osje ć aja ugro ž enosti ), which decision was upheld on 7 July 2010.

On 26 May 2010 the applicant lodged a criminal complaint with the High State Prosecution against X, for threatening in August and September 2009 that he would “cut [his] gypsy head off and impale it on a pike” ( nabiti na kolac ). On 27 July 2010 the State Prosecution rejected the criminal complaint. On 12 August 2010 the applicant filed a private criminal action ( optu ž ni 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 incriminated words in front of a witness, and that the words could make 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”.

On 6 July 2010 X threatened the applicant ’ s daughter that he would kill and slaughter them all, with his hands stretched towards her neck. The girl apparently fainted and was admitted unconscious at hospital. The same day the applicant and his family moved out of their apartment. They were allegedly on a hunger strike for the next 24 days, seeking the help of various State institutions.

On 24 May 2011 the Court of First Instance, after a remittal, acquitted X and W for violent behaviour against the applicant on 20 December 2007, as it was not proved that they had committed the said offence.

B. Relevant domestic law

1. 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, and 42/15)

Articles 168, 370 and 443 of this Code provide for criminal offences of jeopardizing one ’ s security, inciting to ethnic, racial and religious hatred, and racial and other forms of discrimination, respectively.

Article 168 provides, inter alia , that whoever jeopardizes one ’ s security by threatening an attack on their life or 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.

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 jeopardizing someone ’ s security, the perpetrator shall be sentenced to between one and eight years in prison.

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.

2. Criminal Procedure Code ( Zakonik o k rivičnom postupku , published in the OG RM nos. 71/03, 07/04, 47/06, 57/09, 64/11 and OGM no. 043/13).

Articles 19, 20, 44, 45, 59 and 243, read in conjunction, provide, inter alia , that formal criminal proceedings ( krivični postupak ) may be instituted at the request of an authorised prosecutor. In respect of crimes subject to prosecution ex officio the authorised prosecutor shall be the State prosecutor personally. His authority to decide whether to press charges, however, is bound by the principle of legality which requires that he must act whenever there is a reasonable suspicion that a crime subject to prosecution ex officio has been committed.

Article 59 provides that should the State prosecutor decide that there are no bases to press charges, he must inform the victim of this decision, and the latter shall then have the right to take over the prosecution of the case on his own behalf, in the capacity of a “subsidiary prosecutor” ( oštećeni kao tužilac ), within eight days from the notification of that decision.

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

Sections 206 and 207 provide, inter alia , that anyone who has suffered fear, physical pain or mental anguish as a consequence of the violation of his or her personal rights is entitled, depending on the duration and intensity thereof, to sue for damages in the civil courts and, in addition, to request other forms of redress “which might be capable” of affording adequate non ‑ pecuniary satisfaction.

COMPLAINT

The applicant complains under Articles 8, 9, 13 and 14 of the Convention about the failure of the authorities to effectively investigate a series of ethnically and/or religiously motivated attacks against him perpetrated by private parties between 26 May and 22 September 2009.

QUESTIONS TO THE PARTIES

1. Having regard to the States ’ positive obligation under Article 8 to provide procedural protection from ill-treatment even when inflicted by private persons (see, mutatis mutandis , Sandra Janković v. Croatia , no. 38478/05, §§ 52-58, 5 March 2009; A. v. Croatia , no. 55164/08, §§ 59 ‑ 60, 14 October 2010; Remetin v. Croatia (no. 2) , no. 7446/12 , § 103, § 106 and §§ 120-122, 24 July 2014 ) , was the investigation in the present case adequate for the purposes of Article 8 read alone and in conjunction with Article 14 , also with regard to exploring the potential racist motives (see Abdu v. Bulgaria , no. 26827/08 , § 44, 11 March 2014; and Å ečić v. Croatia , no. 40116/02, §§ 66-67, 31 May 2007) ?

The Government are also invited to inform the Court if the State Prosecution ( Osnovno dr ž avno tu ž ila š tvo ) dealt with the case file transmitted to it by the High State Prosecution ( Vi š e dr ž avno tu ž ila š tvo ) on 24 November 2009 and to submit the relevant documents in that regard.

2. Has there been an interference with the applicant ’ s freedom of religion, within the meaning of Article 9 § 1 of the Convention? If so, has there been a violation of the applicant ’ s freedom of religion, contrary to Article 9 of the Convention?

3. Did the applicant have at his disposal an effective domestic remedy for his complaints under Articles 8 and 9, as required by Article 13 of the Convention?

4. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the ground of his religion and/or being Roma, contrary to Article 14 of the Convention (see Šečić v. Croatia , cited above, §§ 66-67, 31 May 2007) ?