SECOND SECTION
\nCASE OF MILI\u0106EVI\u0106 v. MONTENEGRO
\n(Application no. 27821\/16)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n6 November 2018<\/p>\n
FINAL
\n06\/02\/2019<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Mili\u0107evi\u0107 v. Montenegro,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Chamber composed of:<\/p>\n Robert Spano, President, Having deliberated in private on 9 October 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 27821\/16) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Montenegrin national, Mr ZdravkoMili\u0107evi\u0107 (\u201cthe applicant\u201d), on 11 May 2016.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr R.Drakulovi\u0107, a lawyer practising in Podgorica. The Montenegrin Government (\u201cthe Government\u201d) were represented by their Agent, Mrs V. Pavli\u010di\u0107.<\/p>\n 3.\u00a0\u00a0The applicant alleged, in particular, that the State had failed to take preventive measures and thus protect him from an attack by a mentallyill person, a risk of which the authorities had been aware.<\/p>\n 4.\u00a0\u00a0On 19 September 2017 the complaint about the alleged failure of the State to take preventive measures wascommunicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1966 and lives in Podgorica.<\/p>\n A.\u00a0\u00a0Attack on the applicant and ensuing criminal proceedings<\/strong><\/p>\n 6.\u00a0\u00a0On 29 or 30 January 2013 the applicant telephoned the police and reported X for threatening him.<\/p>\n 7.\u00a0\u00a0On 1 February 2013 X entered a coffee-bar owned by the applicant and asked him to come outside. Once outside, X started punching the applicant. Some passers-by separated X from the applicant, after which X left the scene saying \u201cI will bring a knife and a hammer to kill you\u201d. Shortly afterwards, X returned to the bar with a kitchen hammer and started hitting the applicant on his head and all over his body, saying \u201cI will kill you\u201d. One of the waiters and some of the customers separated X from the applicant and took the applicant for emergency treatment. The doctor in charge of the emergency ward noted that the applicant had suffered a head injury measuring 4 cm by 1 cm inflicted by a hammer.<\/p>\n 8.\u00a0\u00a0The same day the applicant lodged a criminal complaint in written form against X, after which X was arrested. On 6 February 2013 X was charged with violent behaviour. In the processing of the indictment it transpired that there was another indictment pending against X,issued on 30\u00a0October 2012,in which he had been charged with stabbing V.J. and inflicting light bodily injuries on him. The proceedings on those two indictments were joined into a single set of proceedings.<\/p>\n 9.\u00a0\u00a0On 30 May 2013 the Court of First Instance (Osnovnisud) in Podgorica found X guilty of inflicting light bodily injuries on V.J. on 9\u00a0October 2012, and of violent behaviour against the applicant on 1\u00a0February 2013. The court ordered the mandatory psychiatric treatment of X in a hospital (mjerabezbjednostiobaveznopsihijatrijskolije\u010denjei\u010duvanje u zdravstvenojustanovi), and the confiscation of two knives and a kitchen hammer.<\/p>\n 10.\u00a0\u00a0During the proceedings it transpired that X had been a long-term psychiatric patient, suffering from schizophrenia, and that he had been treated several times in a special psychiatric hospital. It also transpired that on several occasions he had attacked some of his neighbours, had set his flat on fire, and had caused a flood in the next-door flat. In the course of the proceedings X\u2019s aunt submitted that about three months before attacking the applicant, X had become more aggressive and that she had reduced contact with him to a minimum. The court also established that X had stabbed V.J. without any reason. It transpires from the case file that after that attack, X had been arrested and then released, but there is no information as to the exact dates.<\/p>\n 11.\u00a0\u00a0The court found that there was a direct causal link between X\u2019s mental state and the criminal offences he had committed, that there was a serious danger that he might commit a more serious offence (nekote\u017eedjelo), and that he required psychiatric treatment in order to prevent that from happening.<\/p>\n 12.\u00a0\u00a0That judgment became final on 20 June 2013. On 24 June 2013 the Court of First Instance requested the prisonauthorities to transferX to a special hospital in Kotor.\u00a0On 16 November 2015 the Court of First Instance discontinued (obustavio) the enforcement of mandatory inpatient psychiatric treatment and replaced it with mandatory psychiatric treatment on an outpatient basis,as long as there was a need for treatment but no longer than three years. On 12\u00a0April 2016 the Court of First Instance issued an order (nalog) directing X to undergo outpatient psychiatric treatment in a healthcare centre (Dom zdravlja). He was readmitted to hospital between 22\u00a0August and 21 October 2016, apparently at his own request. Between 18\u00a0April 2016 and October 2017 X had regular monthly check-ups by a specialist.<\/p>\n B.\u00a0\u00a0Civil proceedings<\/strong><\/p>\n 13.\u00a0\u00a0On 27 May 2013 the applicant instituted civil proceedings against the State, seeking 1,700 euros (EUR) in compensationfor non-pecuniary damage. He submitted, in substance, that X had already attacked other people before attacking him, including V.J. four months earlier.Moreover, the applicant had reported X to the police for threatening him before the attack. Owing to the failure of the State to undertake any preventive measure in respect of X, the applicant had been attacked by him and had suffered injuries.<\/p>\n 14.\u00a0\u00a0In the course of the proceedings, on 20 December 2013 the court heard Z.\u0189., a police officer, who had been patrolling for more than ten years in the neighbourhood where X lived and where the applicant\u2019s bar was located. He statedthat two to three days prior to the attack, the applicant had called the police to report Xwho had been \u201ccausing him problems\u201d (stvarao mu problem) and who had told the applicant that he \u201cwould see who the boss in the neighbourhood was\u201d. Following that complaint,Z.\u0189.had looked for X in order to talk to him but had been unable to find him for the next two days. After the applicant had been attacked,Z.\u0189.had goneto the scene and, \u201cknowing that X always carried a knife or some other cold weapon\u201d, asked him whether he had a knife. In response,Xhad taken a knife from behind his back and handed it in. Z.\u0189. further submitted that the police often received complaints of noise, disturbances(neredi) and attacks by X.The police would always have \u201can informative talk\u201d (informativnirazgovor) with X, and would duly notify the State prosecutor (Osnovnidr\u017eavnitu\u017eilac) thereof. He did not know, however,whether those complaints had been further processed.<\/p>\n 15.\u00a0\u00a0On 19 February 2015 the Court of First Instance ruled against the applicant.\u00a0The court held that the police had acted as required, notably by taking X\u2019s statements and forwarding them to the competent prosecutor for further processing. In addition, after the attack Xhad been criminally prosecuted and found guilty. Therefore, there had been no lack of action and thus the State was not liable for the non-pecuniary damage suffered by the applicant.Relying on section 148(1) of the Obligations Act, the court held as follows:<\/p>\n \u201cThe court dismisses as factually and legally unfounded the applicant\u2019s submissions that the State ought to have hospitalisedX before the event here in issue, as the State bodies did order his hospitalisation as soon as the conditions for that had been met. The fact that it was only after the case at issue does not affect the court\u2019s conclusion. The court has concluded that the State bodies acted in accordance with the law and their powers both pursuant to this event and other preceding events, and therefore the conditions for an award of compensation have not been met.\u201d<\/p>\n 16.\u00a0\u00a0On 20 April 2015 the High Court upheld the first-instance judgment. It considered, in substance, that there was no causal link between the State\u2019s actions and the damage caused, given that the applicant\u2019s injury was a result of an attack by a third person. Therefore there was no liability on the part of the State to compensate him for the said damage. The court stated that it had examined other submissions but found that they did not influence its verdict.<\/p>\n 17.\u00a0\u00a0On 12 June 2015 the applicant lodged a constitutional appeal. In substance he maintained that: (a) the State had failed to react appropriately after X had attacked V.J.;(b) four months thereafter,X had attacked and injured the applicant; and (c) three days before the attack the applicant had complained to the police that X had threatened him. The State was thus responsible, as it had had knowledge of the kind of person X was, but had failed to react. The applicant relied on Article 28 of the Constitution (see paragraph 22 below), and on the Court\u2019s findings in the case of Branko\u00a0Toma\u0161i\u0107 and Others v. Croatia in respect of Article 2 of the Convention.<\/p>\n 18.\u00a0\u00a0On 14 October 2015 the Constitutional Court rejected (odbacuje se) the applicant\u2019s constitutional appeal, holding, in particular:<\/p>\n \u201c[the applicant]complains of a violation of his rights in substance by challenging the established facts.<\/p>\n The Constitutional Court reiterates that it is not competent to substitute the regular courts in assessing the facts and evidence, but that it is the task of the regular courts to [do so] (see the European Court\u2019s judgment in the case of Thomas v.the United Kingdom, 10\u00a0May 2005, no. 19354\/02). The task of the Constitutional Court is to examine whether the proceedings as a whole were fair within the meaning of Article\u00a06 of the European Convention and whether the decisions of the regular courts violate constitutional rights. Therefore, the Constitutional Court is not competent to replace the assessment of the regular courts by its own assessment, as it is up to those courts to assess the evidence and establish the facts relevant for the outcome of the proceedings. Therefore, the constitutional appeal here at issue is manifestly (prima facie) unfounded.\u201d<\/p>\n That decision was served on the applicant on 13 January 2016 at the earliest.<\/p>\n C.\u00a0\u00a0Other relevant circumstances<\/strong><\/p>\n 19.\u00a0\u00a0On 10 June 2003 X was found guilty of a serious traffic offence and was sentenced to six months in prison, suspended for two years. On 28\u00a0June 2006 he was found guilty of setting his flat on fire and was ordered to undergo mandatory outpatient psychiatric treatment.<\/p>\n 20.\u00a0\u00a0Before 24 June 2013 (see paragraph 12 above)X had been hospitalised on several other occasions: (a) for an unspecified period in 1997; (b)\u00a0from 29\u00a0November to 19 December 2001; (c) from 25 July 2003 to 8\u00a0July 2004 (following a court decision of 21\u00a0July 2003 to that effect, after he had sethis flat on fire;once it was considered that he had achieved a stable clinical condition, X\u00a0was discharged from the hospital); (d) from 31\u00a0January to 21 February 2006; (e)\u00a0from 23\u00a0July to 29\u00a0September 2006; (f)\u00a0on 15 February and 13 March 2007 (on the recommendation of the healthcare centre in Podgorica following complaints from X\u2019s neighbours); (g) from 5 June to 25 July 2008; and (h) from 24 September 2012 to 3\u00a0October 2012. That period of hospitalisation would appear to have been prompted by an attempt by X to commit suicide by taking a large quantity of medication. The discharge note of 3 October 2012, however, noted that X \u201c[did] not want to remain in hospital in spite of the persistent insistence of the doctor in charge (ordinarijus) that he continue hospital treatment.He [was] prescribed a check-up in seven days\u2019 time with a competent psychiatrist in a health care centre\u201d. There is no information as to whether X had any treatment or a medical check-up thereafter. It is clear from the case file that between the periods of hospitalisation in 2008 and 2012, X had seen a psychiatrist on at least three occasions: on 1 November 2010, 22\u00a0September and 11\u00a0October 2011. Two of the three medical reports state that X had regularly been taking medication.<\/p>\n 21.\u00a0\u00a0On 13 December 2013 X was deprived of his legal capacity following a proposal to that effect by the local social work centre of 14\u00a0November 2013. On an unspecified date thereafter, the social work centre was appointed his legal guardian.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n A.\u00a0\u00a0Constitution of Montenegro (UstavCrne Gore; published in the Official Gazette of Montenegro – OGM nos. 001\/07 and 038\/13)<\/strong><\/p>\n 22.\u00a0\u00a0Article 28 of the Constitution guarantees everyone\u2019s dignity and personal security, the inviolability of his or her physical and psychological integrity, and his or her privacy and personal rights.<\/p>\n B.\u00a0\u00a0Criminal Procedure Code (Zakonik o krivi\u010dnompotupku; published in OGM nos. 057\/09, 049\/10, 047\/14, 002\/15, 035\/15, 058\/15 and 028\/18)<\/strong><\/p>\n 23.\u00a0\u00a0Articles 18, 19, 44, 45, 59 and 271, read in conjunction, provide, inter alia, that formal criminal proceedings (krivi\u010dnipostupak) may be instituted at the request of an authorised prosecutor. In respect of crimes subject to public prosecution, the authorised prosecutor will be the State prosecutor. However, the State prosecutor\u2019s authority to decide whether to press charges is bound by the principle of legality, which requires that he has to act whenever there is a reasonable suspicion that a crime subject to public prosecution has been committed. For crimes subject to private prosecution (zakoja se gonipoprivatnojtu\u017ebi), the authorised prosecutor will be the victim (privatnitu\u017eilac).<\/p>\n 24.\u00a0\u00a0Article 59 provides that, should the State prosecutor decide that there is no basis on which to press charges, he has to inform the victim of that decision, and the latter will then have the right to take over the prosecution of the case on his own behalf, as a \u201csubsidiary prosecutor\u201d (o\u0161te\u0107enikaotu\u017eilac), within eight days of being notified of that decision.<\/p>\n 25.\u00a0\u00a0Article 254 provides, inter alia, that all physical and legal persons who have a public function or who deal professionally with protection and ensuring security of people and property, must report criminal offences which are prosecuted ex officio, of which they have been informed or about which they have found out in performing their duties.<\/p>\n 26.\u00a0\u00a0Article 256 provides, inter alia, that a criminal complaint is to be lodged with a competent State prosecutor, orally or in writing. If the complaint has been submitted by phone, an official report (slu\u017ebenazabilje\u0161ka) must be made in that regard. If the complaint has been lodged with a court, the police, or a State prosecutor who is not in charge (nenadle\u017enom), they will accept the complaint and forward it immediately to the competent State prosecutor.<\/p>\n C.\u00a0\u00a0Criminal Code of Montenegro (Krivi\u010dnizakonikCrne Gore, published in the Official Gazette of the Republic of Montenegro \u2013 OG RM \u2013nos. 070\/03, 013\/04, and 047\/06, and in OGM nos.\u00a0040\/08, 025\/10, 073\/10, 032\/11, 064\/11, 040\/13, 056\/13, 014\/15, 042\/15, 058\/15, and 044\/17)<\/strong><\/p>\n 27.\u00a0\u00a0Article 168 provides for the criminal offence of jeopardising another person\u2019s security. In particular, it provides that whosoever puts another person\u2019s security in jeopardy by threatening their life orhealth, or the life or health of someone close to them,will be fined or sentenced to a term of up to a year in prison. If the offence has caused disturbance to citizens, the perpetrator will be sentenced to between three months and three years in prison.<\/p>\n D.\u00a0\u00a0Protection and Exercise of the Rights of MentallyIll Persons Act (Zakon o za\u0161titiiostvarivanjupravamentalnooboljelihlica; published in OG RM no. 032\/05, and OGM nos. 073\/10, 040\/11and 027\/13)<\/strong><\/p>\n 28.\u00a0\u00a0Section 33provides that when officials responsible for internal affairs suspect that an individual is mentally ill, they must, without delay, ensure that he or she is taken to the nearest healthcare institution for examination. Those officials can, especially in urgent situations,have a mentally ill persontaken to a psychiatric institution if it is justifiably suspected that he or she might jeopardise his or her own life or health, or the life or health of others.<\/p>\n E.\u00a0\u00a0Internal Affairs Act (Zakon o unutra\u0161njimposlovima; published in OGM nos. 044\/12, 036\/13 and 001\/15)<\/strong><\/p>\n 29.\u00a0\u00a0Section 10 provides that the police have a duty to protect the security of citizens and their constitutionally established rights and freedoms; to prevent and detect criminal and minor offences; to find the perpetrators thereof and to bring them before the competent bodies.<\/p>\n 30.\u00a0\u00a0Section 23 defines police authorisations. They include the taking in of a suspect, the temporary limitation of freedom of movement, the issuing of warnings and the giving of orders (davanjeupozorenjaiizdavanjenare\u0111enja).<\/p>\n 31.\u00a0\u00a0Section 53 provides that a police officer must warn a person for whom there is a probability that: (a) by their behaviour they may jeopardise their own security or the security of someone else, or disturb public order and peace; (b) they may commita criminal offence which is subject to prosecution ex officio or a minor offence (prekr\u0161aj).<\/p>\n F.\u00a0\u00a0Obligations Act (Zakon o obligacionimodnosima; published in OGM nos. 47\/08 and 04\/11)<\/strong><\/p>\n 32.\u00a0\u00a0Sections 148 and 149 set out the different grounds for claiming compensation for both pecuniary and non-pecuniary damage, including for a violation of personal rights (povredapravali\u010dnosti). In particular, section\u00a0148(1) provides that whosoever causes somebody else damage is liable to pay compensation, unless he or she can prove that the damage caused was not his or her fault.<\/p>\n 33.\u00a0\u00a0Section 166(1) provides that a legal entity is liable for the damage caused by one of its bodies when exercising its functions or related thereto.<\/p>\n 34.\u00a0\u00a0Sections 206-207 provide that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of personal rights (pravali\u010dnosti) is entitled to sue for financial compensation in the civil courts and, in addition, to request other forms of redress \u201cwhich might be capable\u201d of affording adequate non-pecuniary relief. Section 207 provides that personal rights include the right to physical and psychological integrity, and the right to the protection of private life.<\/p>\n G.\u00a0\u00a0Relevant domestic case-law<\/strong><\/p>\n 35.\u00a0\u00a0On 24 September 2015 the Supreme Court (Rev. br. 578\/15) held that the State was responsible for the damage suffered as a consequence of an attack by a mentallyill person, as State officials (ovla\u0161\u0107enislu\u017ebenici) who had known about the mentallyill person had failed to take him to a psychiatric institution for examination. In that case a mentally illperson had attacked a minor with a knife. In the ensuing criminal proceedings he was found guilty of attempted murder and ordered to undergo mandatory psychiatric treatment in hospital. In the course of the civil proceedings it was established that neighbours had previously complained about the attacker to the police on several occasions. The court held that the police had known, or should have known, about the mentallyill person, given the neighbours\u2019prior complaints in that regard, and therefore they had an obligation to undertake all actions in order to protect the lives of citizens.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/p>\n 36.\u00a0\u00a0The applicant complained under Article 2 of the Convention that by failing to undertake necessarymeasures, the State had failed to prevent an attack on him by a mentally illperson, a risk of which the police had been aware.<\/p>\n 37.\u00a0\u00a0The Government contested that argument.<\/p>\n
\nJulia Laffranque,
\nLedi Bianku,
\nPaul Lemmens,
\nJon FridrikKj\u00f8lbro,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m,
\nIvana Jeli\u0107, judges,
\nand Stanley Naismith, Section Registrar,<\/p>\n