Last Updated on November 9, 2021 by LawEuro
Information Note on the Court’s case-law 256
November 2021
Špadijer v. Montenegro – 31549/18
Judgment 9.11.2021 [Section V]
Article 8
Positive obligations
Authorities’ failure to protect the applicant from bullying by colleagues: violation
Facts – The applicant worked as a prison guard. She experienced incidents of bullying both at work and outside of her workplace, caused by colleagues after she had reported five of them for indecent behaviour, leading to disciplinary proceedings and sanctions.
The Court of First Instance ruled against the applicant in civil proceedings. This judgment was upheld by the High Court and the Supreme Court respectively. And the Constitutional Court dismissed the applicant’s constitutional appeal.
The applicant complained of a violation of her psychological integrity caused by bullying and of the failure of the domestic bodies to protect her from it.
Law – Article 8:
(a) Applicability
The applicant had felt distress as a result of the incidents allegedly imputable to her colleagues, including both her subordinates and her superiors, and had complained that the State had failed to protect her. An expert opinion issued in the course of the civil proceedings had confirmed that the incidents in question had had an adverse impact on the applicant’s moral integrity and had left long-lasting effects on her well-being and capacity to work. In such circumstances, the causal link between the incidents in question and the alleged failure by the authorities, on the one hand, and the applicant’s psychological problems, on the other hand, could be regarded as clearly established.
Conclusion: Article 8 applicable.
(b) Merits
The domestic law had provided for various possibilities for the applicant to seek protection against harassment at work. There was no indication that those had been inherently inadequate or insufficient to provide the requisite protection against incidents of harassment. However, the available remedies should function in practice.
Firstly, the mediation proceedings before her employer had not been in compliance with the relevant legislation in that they had been neither initiated nor completed within the statutory time-limits. More importantly, the mediator had examined whether the applicant’s request had been well-founded, thereby overstepping his statutory competence.
Secondly, while the civil courts had found at least some causal link between the incidents and the applicant’s illness and psychological suffering, the applicant had not received protection because the courts had required proof of incidents occurring every week for six months. Nevertheless, complaints about bullying should be thoroughly examined on a case-by-case basis, in the light of the particular circumstances of each case and taking into account the entire context.
The relevant case-law in Montenegro was scarce and not settled, in particular as to how often bullying needed to have occurred in order to trigger the application of the relevant law.
The courts had examined only some of the incidents and had made no attempt to establish how often any of the incidents had been repeated and over what period. The acts of harassment to which the applicant had been subjected had been in reaction to her reporting some of her colleagues and had been aimed at silencing and “punishing” her. States’ positive duty under Article 8 to effectively apply in practice laws against serious harassment took on a particular importance in circumstances where such harassment might have been triggered by “whistle-blowing” activities.
In addition to the incidents at work the applicant’s car had been damaged and she had been assaulted. The relevant criminal legal framework provided sufficient protection in respect of such assaults (Milićević v. Montenegro). However, the State prosecutor had issued no decision in over than eight and six years respectively in response to the applicant’s criminal complaints, thereby effectively preventing her from bringing private charges .The applicant had raised the State prosecutor’s failure before the Constitutional Court but that court had made no reference to it.
In view of the above, the manner in which the civil and criminal-law mechanisms had been implemented in the particular circumstances of the applicant’s case, in particular the lack of assessment of all the incidents in question and the failure to take account of the overall context, including the potential whistle-blowing context, had been defective to the point of constituting a violation of the respondent State’s positive obligations under Article 8.
Conclusion: violation (unanimously).
Article 41: EUR 4,500 for non-pecuniary damage.
(See also Sandra Janković v. Croatia, 38478/05, 5 March 2009, Legal summary; Milićević v. Montenegro, 27821/16, 6 November 2018, Legal summary)
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