Last Updated on May 14, 2019 by LawEuro
Information Note on the Court’s case-law 223
November 2018
Milićević v. Montenegro – 27821/16
Judgment 6.11.2018 [Section II]
Article 8
Positive obligations
Authorities’ failure to protect the applicant from violent attack by mentally ill person, who had threatened him: violation
Facts – In late January 2013, the applicant reported to the police that X, a long-term psychiatric patient suffering from schizophrenia, had threatened him. A couple of days later he was attacked by X with a hammer and suffered a head injury. The applicant lodged a criminal complaint against X who was subsequently prosecuted for causing bodily harm to the applicant but also for another incident that had occurred in October 2012, where he had stabbed a person, V.J., without any reason. He was found guilty on both charges and ordered to undergo mandatory inpatient psychiatric treatment.
The applicant’s subsequent civil claim for compensation of non-pecuniary damage, suffered as a result of the State’s alleged failure to take any preventive measure, was dismissed by the domestic courts, finding no responsibility on the part of the State.
Law – Article 8: The Montenegrin legal framework provided for the criminal offence of jeopardising someone’s personal security and where the State prosecutor declined to prosecute, on whatever grounds, the injured party could take over the prosecution as a subsidiary prosecutor, thus the domestic legal framework provided sufficient protection.
While it was appreciated that the competent bodies had intervened after X had attacked the applicant, it could not be overlooked that it had been the domestic authorities’ inactivity and failure to ensure that the applicant was protected after X had threatened him, or to ensure that X was duly provided with psychiatric treatment after he had stabbed V.J., which had led to his threat against the applicant materialising.
In particular, the authorities had been aware of the fact that X was a long-term psychiatric patient, that he had had a history of violent behaviour, which included attacking his neighbours, setting his flat on fire, and causing a flood in a neighbour’s flat, and that he had always carried a knife or some other similar weapon. They had also been aware of X’s previous criminal record and that during those proceedings the domestic courts had established a causal link between X’s mental state and the offences he had committed. Moreover, four months prior to attacking the applicant, X had left the hospital of his own will and contrary to the doctor’s recommendation. A few days after he had left the hospital he had stabbed V.J, without any reason. There was no evidence that X had been medically checked after attacking V.J. in order to ensure that he had been taking his medication, which indicated a lack of cooperation between the police and the medical services. The indictment for that attack had been issued but it had not been processed for more than three months, that was, until after X had attacked the applicant. Furthermore, the authorities had been aware of X’s threatening the applicant as the latter had reported it to the police. Therefore, the authorities ought to have been aware of the real and imminent risk of violence against the applicant.
The lack of sufficient measures taken by the authorities in reaction to X’s behaviour had amounted to a breach of the State’s positive obligations under Article 8 to secure respect for the applicant’s private life.
Conclusion: violation (unanimously).
Article 41: EUR 4,500 in respect of non-pecuniary damage.
(See also Hajduová v. Slovakia, 2660/03, 30 November 2010, Information Note 135)
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