CASE OF BLJAKAJ AND OTHERS v. CROATIA
Preliminary objection dismissed (Article 34 - Victim);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award
Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
5. The first applicant was born in 1948, the second applicant was born in 1976, the third applicant was born in 1980 and they all live in Slatina. The fourth applicant was born in 1956 and lives in Osijek, and the fifth applicant was born in 1949 and lives in Josipovac. 6. The first applicant is the husband, the second and third applicants are children, and the fourth and fifth applicants are sisters of the late M.B.B., a lawyer who was based in Slatina. 7. M.B.B. represented M.N. in divorce proceedings instituted in December 2001 in the Slatina Municipal Court (Općinski sud u Slatini) against her husband, A.N. 8. A first hearing in those proceedings was held on 12 February 2002, attended by the parties and the lawyer M.B.B. The court heard the parties’ arguments and decided to request a report from the local social services. It then adjourned the hearing until 9 April 2002. 9. According to A.N.’s police records, he had a history of alcohol abuse, violent behaviour and unlawful possession of firearms. In May 1993 the Slatina Police (Policijska Postaja Slatina – hereinafter “the police”) instituted minor offences proceedings against him for beating up his daughter and wife under the influence of alcohol and making serious threats using firearms. On that occasion, the police seized from A.N. a rifle with a dozen bullets and a hand grenade. There is, however, no further information on the outcome of these proceedings. Furthermore, between 2000 and 2002 A.N. was reported three times for family violence and twice for a breach of the peace and public order, and in May 2001 the police lodged a criminal complaint against him with the State Attorney’s Office for making serious death threats to his wife. 10. On 16 October 2000 the Slatina Minor Offences Court (Prekršajni sud u Slatini) found A.N. guilty of the minor offence of family violence and fined him 500 Croatian kunas (HRK). During the proceedings, M.N. explained that the divorce proceedings were pending before the courts and that A.N. had contested them. She also explained that she had ended up in hospital after having been severely beaten by A.N. 11. On 25 July 2001 the Slatina Municipal Court found A.N. guilty of the criminal offence of making serious death threats to his wife and sentenced him to two months’ imprisonment, suspended for one year. 12. According to a police report drawn up on 25 March 2002, M.N., accompanied by A.N., attended the police station on 21 March 2002, alleging that her husband had been harassing her. She made no other complaints of possible threats or violence. She further explained that A.N. had previously beaten her up and had been convicted in the minor offences and criminal courts. She also pointed out that their divorce proceedings were pending and that a hearing was scheduled for 9 April 2002. On the same occasion, A.N. argued that he did not want his wife to see other men. The police officer who interviewed the couple, Ž.J., warned A.N. to stop harassing his wife and instructed them to settle all their disputes in the divorce proceedings. The report also contains a note suggesting that during the interview, A.N. and M.N. showed no signs of aggression, alcohol abuse or agitation. 13. Afterwards, police officer Ž.J. informed his superior officer, M.Kr., of the interview. He was told to make a short note of the event in the logbook and that it was not necessary to draft a report or take any further action. 14. According to further police reports, at around 7 a.m. the following day, A.N. went to a bank in Slatina with the intention of withdrawing all his money. He told a bank employee, D.K., whom he had met before, that they would not see each other again. While speaking to the bank employee, A.N. was in tears. When she asked him what was troubling him, he said that “it will be talked about”. He also shook hands with several other people who then told the bank manager, F.S., to contact the police. F.S. followed A.N. out of the bank and asked him what was troubling him. A.N. responded that he was sick of everything; his wife, who was having affairs with other men, and his son, who was a drug addict, and that he was going to do something and nobody could stop him. 15. At 7.15 a.m. F.S. informed the police of the event, saying that he was afraid that A.N. could do something to himself or others. 16. At 7.17 a.m. an on-duty commanding officer, T.S., sent a patrol of two police officers, M.L. and I.B., to the bank. At the same time he checked A.N.’s police records and saw that he had a violent background. He therefore informed the police chief, M.Ko., who ordered a police patrol to be sent to A.N.’s home address. At 7.38 a.m. M.L. and I.B. were sent to look for him there. 17. The report submitted by police officers M.L. and I.B. indicates that they found A.N. at home. He approached them at the front of his house and said that he was sick of everything, and that he had withdrawn the money for his funeral because he was going to kill himself either that day or the next by jumping under a train, and that there was nothing they could do about it. He also said that he had already written a suicide note, and complained that the day before he had been at the police station because his wife had been seeing another man. The police officers noted in their report that A.N. had appeared sober and had not shown any signs of aggressiveness, and had not mentioned his wife or anybody else or that he might hurt anybody. They therefore advised him that everything was going to be fine and left. 18. Upon their arrival at the police station at 8.06 a.m. the police officers reported on the interview to the on-duty commanding officer M.T., who had taken over from T.S. (see paragraph 16 above) in the meantime. 19. According to a report drawn up by M.T. on 22 March 2002, M.L. and I.B, the police officers who had visited A.N. at his home (see paragraph 17 above), had reported to him that A.N. was contemplating suicide because of his family problems, and that he had mentioned his divorce and said that nobody could stop him. At 8.12 a.m. M.T. informed the deputy police chief for the criminal police, M.B., of the event who instructed him to immediately inform the Slatina Health Centre (Dom zdravlja Slatina – hereinafter “the hospital”) and Slatina Social Care Centre (Centar za socijalnu skrb Slatina). He informed the hospital doctor, I.F., at 8.15 a.m. and the Social Care Centre at 8.18 a.m. The doctor had said that he would see with a nearby psychiatric hospital whether they could admit A.N. for treatment, while an official from the Social Care Centre had said that she had known A.N.’s situation very well and told the police to contact the hospital. 20. Later during the investigation the police found that officer M.T. had falsified his report, as he had actually informed doctor I.F. at 9.40 a.m., not 8.15 a.m. as indicated, and had informed the Social Care Centre at 9.37 a.m., not 8.18 a.m. as indicated (see paragraph 19 above and paragraphs 35 and 46 below). 21. Meanwhile, sometime after 8.00 a.m., A.N. returned to the bank, shouting at F.S. for having called the police. He then went to a nearby bar for a drink and at around 9.00 a.m. went to the police station. He met the on-duty commanding officer M.T. there, and demanded to know why the police had been to see him. M.T. explained that the police had had information that he had been having some problems. A.N. replied that he was going to solve his problems himself and that he was going to do what he intended. He then left the police station. 22. A.N. then went in search of his wife, who started work in a bakery shop at 10 a.m. He waited for her in a nearby street he knew she had to pass when going to work. When A.N. saw her, he approached her and kicked her in the head, knocking her to the ground. He then fired one shot at her and went to leave, but then returned to shoot her a further three times. She survived, despite receiving serious injuries to her head, stomach and arm. 23. After shooting his wife, A.N. went to M.B.B.’s office, which was only some three hundred metres away. M.B.B. was in the office at the time with her secretary and a client, A.R. Immediately upon entering the office A.N. fired a shot in M.B.B.’s direction, but hit her desk. The client attempted to talk him round, but when A.N. threatened to kill him, he ran away. A.N. then attempted to shoot the secretary, who was calling the police, but his pistol jammed and she managed to escape. A.N. then approached M.B.B. and shot her dead by firing three bullets at her, of which two were fatal. 24. In the meantime, some onlookers had informed the police of the incidents and several police units were sent to search for the gunman. 25. At around 10.35 a.m. the police arrived at A.N.’s house and ordered him to surrender and go with them to the station in connection with the investigation into the shootings. He refused, before throwing two hand grenades at the police officers and starting to shoot at them. 26. When special police units stormed into A.N.’s house at around 3.26 p.m., they found him with a self-inflicted head wound, the type of weapon that had been used for the shootings, and a suicide note. He was immediately taken to hospital, but died the next day. 27. On the same day as the incidents occurred, an investigating judge of the Bjelovar County Court (Županijski sud u Bjelovaru) and a Deputy County State Attorney conducted crime scene investigations with the assistance of police forensic scientists. In A.N.’s house the police found another suicide note, a number of different bullets and an empty hand grenade cartridge. They also discovered that the weapon used by A.N. had been reported missing and that its owner had died in 1997. 28. The investigating judge ordered a forensic examination of the bodies which confirmed that M.B.B. had suffered a violent death as a result of the gunshots. 29. During the investigation the police interviewed a number of people who provided information concerning A.N. and the course of the events in which he had killed M.B.B. and attempted to kill his wife. The police drew up reports of the interviews but they were not signed or otherwise attested by the witnesses. 30. According to the police reports, A.N. and M.N.’s children, E.N. and M.B., provided information about the problems in their family and the frequent violent incidents mainly caused as a result of A.N.’s alcohol abuse. The incidents were confirmed by M.N. in her interview with the police. She also stated that he had been angry at her lawyer M.B.B., but had not threatened to kill her. 31. M.B.B.’s secretary described the course of events in which A.N. had attempted to shoot her and killed the lawyer M.B.B., which was also confirmed by the client A.R. who had been in the office at the time (see paragraph 23 above). Another witness, N.M., a waiter in a nearby bar, described how he had heard gunshots and later found M.B.B. dead in her office. 32. The police also interviewed the bank employees D.K. and F.S., who provided information about A.N.’s behaviour in the bank (see paragraph 14 above), and two other witnesses, I.T. and A.K., who had also been in the bank when A.N. was there. The two bank customers stated that A.N. had seemed disturbed and looked as though he had needed some help, but had not said he was going to kill anybody. 33. An acquaintance of A.N., Ž.M., told police that for the past year A.N. had been saying that he was going to kill his wife. After the incidents at issue, A.N. called him and said that he killed his wife and shot her lawyer. Information to that effect was also provided by another acquaintance of A.N., I.Š., who said that when he got drunk A.N. would say that he was going to kill somebody but without specifying whom. On the morning in question he had seen A.N., who had shown him a handful of bullets. 34. A.N.’s brother-in-law, L.Z., stated that A.N. had complained that during a hearing in the divorce proceedings M.B.B. had prevented him from raising all his arguments before the court, and that he should do something about it but without specifying what. He had never mentioned that he was going to kill anybody. His other brother-in-law, F.Z., stated that a couple of days before the incidents his wife Ž.Z. had told him that she had seen A.N., who had told her that he was going to kill his wife and her lawyer, but she had not thought that he had really meant it. This was confirmed by Ž.Z. herself in her statement to the police. 35. During the investigation the police interviewed doctor I.F. who had taken the police’s call to the hospital on the morning of the incidents (see paragraph 19 above). He stated that he had received the call at around 9.40 a.m., not 8.20 a.m. as reported in the media. He also provided evidence to that effect because his telephone had the ability to record times and dates of calls. Based on the information he had received, he had attempted to contact a nearby psychiatric hospital to arrange for A.N.’s possible hospitalisation. However, he had not managed to speak to any of the doctors, as he had been told by a nurse that they had all been in a meeting which she had not been allowed to interrupt. 36. The results of the investigation were submitted to the Slatina Municipal State Attorney’s Office (Općinsko državni odvjetništvo u Slatini) to assess whether the police could be held liable for their actions in connection with the incidents at issue, particularly with regard to the application of section 24 of the Protection of Individuals with Mental Disorders Act. That provision stated that an individual could be admitted to a psychiatric institution where there was a reasonable suspicion that the individual posed an immediate threat to his life or health, or the life or health of others (see paragraph 81 below). 37. On 16 August 2002 the Slatina Municipal State Attorney’s Office issued the following statement: “A.N. was a violent person against whom a criminal complaint had been made for making serious death threats to his wife and on several occasions was reported for the minor offences of family violence, abusive behaviour and inappropriately addressing police officers. On the day in question A.N., without any further elaboration, told police officers that he was going to kill himself because of his family problems. The police officer on duty, M.T., omitted to inform the hospital and Social Care Centre of the whole situation. Had there been coordination between the doctor and social worker, who had known the situation in A.N.’s family better, measures for the prevention of suicide could perhaps have been taken. In the circumstances, at the relevant time the police officers had no reason to treat A.N. as a mentally disturbed person within the meaning of section 24 of the Protection of Individuals with Mental Disorders Act. ...” 38. On 22 March 2005 the applicants, through their lawyer, lodged a criminal complaint against police officer M.T. with the Slatina Municipal State Attorney’s Office, alleging that he had falsified the police records indicating the exact time he had contacted the hospital and Social Care Centre (see paragraphs 19 and 20 above). They also lodged a criminal complaint against police chief M.Ko. for abuse of power and authority, because he had failed to institute criminal proceedings against police officer M.T. 39. On 30 May 2005 the Slatina Municipal State Attorney’s Office rejected the criminal complaints against the police officers on the grounds that their actions did not constitute criminal offences. 40. On 10 June 2005 all five applicants and K.B., the mother of M.B.B., took over the prosecution as subsidiary prosecutors and lodged an indictment against the police officers in the Slatina Municipal Court. 41. During the proceedings police officer M.T. stated that after officers M.L. and I.B. had returned from their interview with A.N. (see paragraph 19 above), they had told him that A.N. had been agitated and had mentioned problems in his family, but had not made any threats. Sometime at around 8 a.m. he had therefore attempted to contact police chief M.Ko. to seek further instructions. After having failed twice to reach M.Ko., who had been out of his office, he had called the deputy police chief for the criminal police, M.B., who had instructed him to contact the hospital and Social Care Centre. He had then telephoned the hospital, but the number he had dialled had not been valid, so he had only managed to get the right number later when he had spoken to doctor I.F. When he had called the hospital for the first time he had written down the exact time on a piece of paper and then later had just taken that time for his report. 42. Doctor I.F. also gave his oral evidence during the proceedings. He testified that after he had received the information from the police about their interview with A.N., he had told the police that he would need to examine A.N. and then decide whether compulsory psychiatric treatment would be necessary. However, the police had not known where A.N. was at the time, so he had told them to find him. Approximately fifteen minutes later the hospital had received information about the shootings. 43. On 3 May 2006 the Slatina Municipal Court acquitted police officer M.T. on the grounds that there had been no evidence that he had deliberately falsified his report. The court also dismissed the charges against police chief M.Ko. on the grounds that the prosecution had become time-barred. 44. The judgment was confirmed on appeal by the Virovitica County Court (Županijski sud u Virovitici) on 21 September 2006. 45. On 18 April 2002 the Ministry of the Interior opened disciplinary proceedings against police officer M.Kr. for failing to report on the interview with A.N. and his wife on 21 March 2002 even though A.N.’s background and the information concerning their relationship warranted that such action be documented (see paragraphs 12 and 13 above). 46. On 27 May 2002 disciplinary proceedings were also opened against police officer M.T. for failing to immediately report the situation concerning A.N. on the morning of 22 March 2002 to the hospital as he had been instructed to do by his superior, and for falsifying his report about the times he had contacted the hospital and Social Care Centre (see paragraphs 19 and 20 above). 47. The first-instance Osijek Disciplinary Panel of the Ministry of the Interior (Prvostupanjski disciplinski sud u Osijeku) found police officer M.Kr. guilty on 10 October 2002 and sentenced him to a 15% reduction of salary, to be applied for one month. 48. On 5 November 2002 the disciplinary panel found police officer M.T. guilty and sentenced him to a 10% reduction of salary, to be applied for two months. 49. On 22 March 2005 the five applicants and K.B. lodged a civil action against the State in the Slatina Municipal Court, seeking damages for the authorities’ failure to protect their relative’s right to life. They relied on section 13 of the State Administration Act, which provides that the State is liable to compensate damage caused to a citizen, legal entity or other party for the unlawful or wrongful conduct of a State authority (see paragraph 83 below). 50. A first hearing was held on 6 July 2005, at which the trial court heard evidence from bank employees F.S. and M.S. 51. F.S. testified that after he had seen A.N. crying, he had asked him what had happened and A.N. replied that it would be talked about. He had then called the police, who arrived soon after. When he had told them what had happened, the police had just replied that they had known A.N. very well. A.N. had appeared totally unstable that morning, which had been noticeable to F.S. because he worked with people. Everybody in the bank had noticed that A.N. had been totally crazy, and F.S. had therefore called the police because he had thought that A.N. was a danger, primarily to himself, and should get medical treatment. When A.N. had entered the bank for the second time he had not calmed down and had been yelling at F.S. for calling the police about him. This version of events was confirmed by M.S. 52. At a hearing on 14 September 2005 the trial court heard evidence from doctor I.F. He testified that on the morning of 22 March 2002 at around 9.45 a.m. he had been informed by the police that A.N. had been behaving strangely and that he might do something bad. The police officer had not however known where A.N. was at the time. Doctor I.F. explained that the usual practice in such cases was to examine the person and then decide whether admission to hospital was necessary. He also specified that the police officer who had called him had said that A.N. could kill somebody or do something bad. This had prompted him to believe that his and the police’s intervention had been necessary, and that A.N. should be taken to the psychiatric hospital. Had the police managed to trace A.N., he would have examined him, because that had been the practice in similar cases and also in cases where somebody had threatened suicide. 53. At the same hearing the trial court questioned police chief M.Ko., who explained that A.N. was known to him because he had once been held at the station for violent behaviour. On the day in question he had given orders to the on-duty commanding officer to send a police patrol to A.N.’s home address and had then left the police station to attend to some other business. He had returned to the police station at around 9.55 a.m. and had been told of the shootings. 54. The next hearing was held on 23 November 2005, where the trial court heard evidence from M.N. She stated that A.N. had previously had a rifle, a handgun and a bomb which had been, at some point, confiscated from him by the police. He would also say that he was saving money to buy a handgun to kill her and two other people, but she had never known exactly whom. A.N. had had a problem with alcohol and when he would get drunk he would be violent. She had called the police on more than a hundred occasions, but sometimes they would come and sometimes they would not. A.N. had contested the divorce and the day before the incidents had threatened to kill her. She had reported that on the same day to the police, but they had done nothing about it. At the same hearing the trial court questioned bank employee D.F., who explained the course of the events in the bank (see paragraph 14 above). 55. A further hearing was held on 18 January 2006, at which the police officers M.L., M.T. and I.B. gave evidence. 56. M.L. testified that on the morning of the incident, he and police officer I.B. had been ordered to go to the bank because A.N. had been there and had been behaving strangely. In the bank, they had met someone who had called the police, who explained that A.N. had gone to the bank, had withdrawn all his money and while in tears had said “it will be talked about”. When M.L. and I.B. had reported on their findings to the on-duty commanding officer, they had been instructed to find A.N. at his home address. They had found him there and interviewed him. A.N. had not been drunk or aggressive. He had said that he was going to kill himself because of problems with his wife and son and that he would do it either that day or the next, and that nobody could stop him. He had appeared normal and calm. They had not searched him because there had been no grounds to take such action, nor had there been any reason to take him to hospital in accordance with the Protection of Individuals with Mental Disorders Act. M.L. also explained A.N. was known to him and that before seeing him, he had been informed by the on-duty commanding officer that he had already threatened to kill his wife. 57. In his statement I.B. confirmed M.L.’s version of events, explaining that the police could take an individual to hospital or a police station and have a doctor examine him, but they had not considered A.N. to be a danger so had not taken any such action. 58. Police officer M.T. stated that when officers M.L. and I.B. had returned from the bank they had said that A.N. had not been drunk or aggressive but merely agitated, and that he had threatened suicide. M.T. had then attempted to contact his superiors and had managed to get in touch with the deputy chief for the criminal police M.B., who had instructed him to inform the hospital and Social Care Centre. He had attempted to contact the hospital several times and at some point had managed to reach doctor I.F, who had said that he would try to find a place for A.N. in a psychiatric hospital. He had also asked where A.N. was, but at the time M.T. had not known. M.T. further explained that he had been familiar with the Protection of Individuals with Mental Disorders Act, which enabled the police to take a mentally disturbed individual to a psychiatric hospital, but he had considered the police to have done everything they could, although with hindsight, it would have been possible to do more, but the police could not have predicted what would happen. He had known that A.N. had a violent background but stressed that he had not been registered as insane. 59. At a hearing on 15 March 2006 the deputy chief for the criminal police M.B. gave his oral evidence. He explained that he had been informed that A.N. had gone to the bank where he had been behaving strangely. Later, he had been informed that the police had interviewed him and that he had appeared calm and normal but had threatened suicide. At around 8.05 to 8.10 a.m. M.B. had instructed the on-duty commanding officer, M.T., to inform the hospital and Social Care Centre. He considered the police to have done everything they could, but there had been no grounds to take any further measures given the findings of the police patrol that had interviewed A.N. at his home. He also explained that the usual practice in similar cases was to inform the hospital, who could call the police if they needed assistance. 60. A further hearing was held on 10 May 2006 at which police officers Ž.J. and T.S. and a customer from the bank, I.T., gave evidence. 61. Ž.J. stated that the day before the incidents M.N. had arrived at the police station followed by her husband A.N. Police officer Ž.J. had interviewed them but had found no grounds for the police to take further action, so he had told them to resolve their marital problems in their court proceedings. M.N. had also mentioned that after A.N. had been handed a suspended sentence, he had stopped making threats and beating her up. Ž.J. had not reported on the interview because his superior officer M.Kr. had not requested it. 62. Police officer T.S. had no specific knowledge about the incident. He had been off-duty at the time although he had, early in the morning, just before leaving the police station, sent a police patrol to the bank to check what had happened there and why A.N. had been behaving strangely. 63. The bank customer I.T. testified that he had seen A.N. in the bank on the morning in question, who had told him that he had been having some problems and that it would be talked about. He had been behaving strangely, as he had been walking around the bank in circles. He had looked nervous, and I.T. had thought that he had been ill and in need of medical attention. 64. On 15 September 2006 the trial court obtained a psychiatric report certifying that the first, second and third applicant and M.B.B.’s mother had all experienced mental suffering after the events. The report was confirmed by the expert at a hearing held on 21 February 2007. 65. On 5 March 2007 the Slatina Municipal Court allowed the civil action and ordered the State to pay damages for failing to protect the life of the applicants’ relative. The trial court held that the State’s responsibility under section 13 of the State Administration Act was objective, and that it was only necessary to establish whether the death had been a result of the unlawful or wrongful conduct of the State authorities. The relevant part of the judgment reads: “... It is not disputed between the parties that F.S. called the police a little after 7 a.m. F.S. informed the police of what had happened in the bank and about A.N.’s appearance. This court fully accepts the statements of F.S., M.S., D.F. and I.T. as credible when they testified about A.N.’s state of mind [in the bank]. They stated that A.N. had appeared totally unstable. The conclusion of the police officers M.L. and I.B. that A.N. had been normal and calm and had not been a danger cannot be accepted as logical. They reached such a conclusion after being informed by A.N. that he had withdrawn the money for [his] funeral, and that he was going to kill himself and nobody could stop him. Taking this into account, [this court considers that] the average person could have reached the conclusion about A.N.’s state of mind referred to by witnesses [F.]S., M.S., D.F. and I.T. The police officers who needed to act with particular diligence should have also reached [this] conclusion about A.N.’s state of mind, which they failed to do. They thus failed to act in accordance with sections 22 (1), 23§(1) and 24 of the Protection of Individuals with Mental Disorders Act ... The defendant considers that there is no connection between the failures of the police and [M.B.B.’s death] and that there is therefore no liability on the Republic of Croatia. This court considers differently. Had police officer M.T. complied with the order of the deputy chief for the criminal police M.B., and informed the hospital and Social Care Centre at 8.15 a.m., as noted in the report, it is highly probable that the outcome would have been avoided, particularly taking into account the statement of witness I.F ... As the liability of the State is objective; it was for it to prove that the damage occurred as a result of a cause which could not have been avoided (vis major), or that the damage resulted exclusively from the actions of the aggrieved party or a third party which could not have been predicted and where the outcome could not have been avoided (section 177(1) and (2) of the Civil Obligations Act). Nothing of [the sort] has been proven by the defendant. ...” 66. The Slatina Municipal State Attorney’s Office, representing the State in the proceedings, lodged an appeal with the Virovitica County Court on 26 April 2007. 67. On 19 November 2007 the Virovitica County Court quashed the first-instance judgment and ordered a retrial on the grounds that the first-instance court had erred in its findings that the liability of the State was objective as it was based on the existence of a fault, namely unlawfulness. That court further found that, irrespective of the fact that A.N. had threatened suicide, there had been nothing requiring police officers M.L. and I.B. to treat the case as particularly urgent and to take A.N. to a psychiatric hospital. It also accepted the police officers’ statements that A.N. had appeared calm during the interview. The Virovitica County Court instructed the first-instance court to question witnesses I.F. and M.T. again to establish what actions doctor I.F. had intended to take, since it was not clear whether he had intended to examine A.N. or just to see whether he could be placed in a psychiatric hospital, as could be inferred from the statement of police officer M.T. 68. In the resumed proceedings, at a hearing held on 27 February 2008, the Slatina Municipal Court heard doctor I.F. and police officer M.T. 69. Doctor I.F. testified that the usual practice in similar cases was to immediately respond at the scene and to examine the person if he or she was available. The medical response team consisted of a doctor, a driver and medical technician and a nurse. They first had to examine the person and then the doctor could decide whether hospitalisation in a psychiatric hospital was necessary. Police intervention was only sought if the person could not be apprehended for the examination. As regards the case at issue, doctor I.F. explained that he had been called by a police officer who had told him that A.N. had been behaving strangely and that he could do something bad. The police officer had not known where A.N. was. Had he known, he would have immediately responded at the scene and examined him. Doctor I.F. also explained that he had to first examine the person and only then he could make a prescription for that person’s admission to hospital. There had been no reason for him to check whether there had been a place in the hospital because it was for the hospital to decide what they wanted to do with his prescription and the person in question. In the present case, the information he had received from the police suggested that it had been necessary to examine A.N. at the scene. 70. Police officer M.T. stated that on the day in question he had informed doctor I.F. that the police had had a person who was seriously disturbed and who should be given an injection in order to calm down. As to his further conversations with the doctor, M.T. stated: “I cannot remember any more what doctor [I.]F. told me when I contacted him. I don’t remember exactly, but I think he told me that he would see whether [A.N] could be placed in the psychiatric hospital and then would ask for police intervention if he needed it. ... I would like to change my statement in the part where I said that doctor [I.]F. was going to first find a place in [the psychiatric hospital] and that he would then consult the police chief. Doctor F. actually told me that he would first examine [A.]N. and that he would call the police if necessary. ... In reply to the question from the defendant’s representative, I cannot explain why I changed my statement as regards what doctor [I.]F. had told me.” 71. On 7 March 2008 the Slatina Municipal Court obtained a police report describing the course of events later on the day of the shooting, and on 9 April 2008 concluded the trial. 72. On 22 April 2008 the Slatina Municipal Court dismissed the civil action as ill-founded, and ordered the applicants to pay HRK 80,700 in costs and expenses. The relevant part of the judgment reads: “... The liability of the defendant is based on the principle of fault (section 154(1) of the Civil Obligations Act). Unlawful conduct is conduct which is contrary to the law or an omission in the application of the law, which is committed deliberately or by accepting that it might cause damage to a third party. ... The purpose of section 13 of the State Administration Act is to provide for the liability of the State where there is a wilful act contrary to the law with the intent of causing damage ... Acceptance [of that outcome] is conduct or an omission of a State official in the performance of his or her official duties where he or she was able to, according to his or her individual capability, take into account the objective requirements with due diligence, and which he or she failed to do. In the particular circumstances, there is no causal link between the damage and the omissions of police officer M.Kr., in his capacity as on-duty commanding officer, to report the day before [the shootings] about M.N.’s complaint that she had been followed by A.N. This court finds nothing to suggest that the police officers who intervened at the bank, and who had had no knowledge of this, would have acted differently even if they had had such information. The plaintiffs also refer to the omissions of police officers M.L. and I.B ... Under section 24 of the Protection of Individuals with Mental Disorders Act the police may, in particularly urgent cases, take a mentally disturbed individual to a psychiatric hospital without prior medical examination, provided there is a reasonable suspicion that the individual poses an immediate threat to his life or health, or the life or health of others ... The events [in the bank] suggest that the police had an obligation to act under section 23 of the Protection of Individuals with Mental Disorders Act and to secure A.N.’s medical examination, after which the doctor could decide whether to take to a psychiatric hospital. But in the particular circumstances police officers M.L. and I.B. could not have been expected to recognise that there was any particular urgency or that A.N. should be taken to a psychiatric hospital without prior medical examination ... The omission of police officer [M.T.] to inform the hospital about A.N.’s behaviour is an irregularity in the performance of his official duties. However, the dispute between the parties is whether there is a causal link between this irregularity and the event ... Even if M.T. had informed the hospital at 8.15 a.m., it is doubtful whether the doctor would have carried out an examination because at that time he had not known where A.N. was. It follows that at the time A.N. was no longer available to the police and according to the evidence [submitted by] F.S. was in the bank sometime between 8.30 and 9 a.m. There is therefore no causal link between the incidents and the omissions of police officer M.T ... “ 73. The first, second and third applicants and K.B. lodged an appeal against the above judgment with the Virovitica County Court, arguing that the State authorities had failed to prevent the killing of their relative, and that in accordance with the relevant domestic law they should have been awarded damages. 74. On 7 May 2009 the Virovitica County Court dismissed the applicants’ appeal and upheld the first-instance judgment. It held, however, that the first-instance court had erred in concluding that at 8.30 a.m. the police had not known A.N.’s whereabouts, because around that time the police had interviewed him at his home. In any event, the police could have informed the hospital immediately after 7.15 a.m. when they had received the call from the bank. Nevertheless, the court held that the police had done everything they could and that it could not be concluded that only intervention by the doctor in the first few hours after the information had been received from the bank would have prevented the incidents. The court also found that, irrespective of A.N.’s violent background and the indications that he was mentally disturbed, he had not acted violently on the day of the incidents or the day before. It was true that police officers M.L. and I.B. had omitted to examine A.N. under section 49 of the Police Act, but he had not been behaving violently, so that omission could not be characterised as an irregularity in their work. Moreover, it was not certain whether A.N. had a gun at the time and therefore it was in doubt whether such a police search could have prevented the incidents. 75. On 29 June 2009 the first, second and third applicants and K.B. lodged an appeal on points of law against the above judgment before the Supreme Court (Vrhovni sud Republike Hrvatske). 76. On 11 May 2011 the Supreme Court dismissed the appeal on points of law as ill-founded and upheld the Virovitica County Court’s judgment. It found that the lower courts had misinterpreted the relevant domestic law by holding that the liability of the State was based on the principle of fault because it was in fact based on the objective principle. It was thus sufficient to establish that there was unlawful or irregular conduct on the part of the State administration and the causal link to the damage thereby caused. In the case at issue, the Supreme Court held that there had been no causal link between the irregular work of the police officers and the killing of the applicants’ relative. 77. On 5 January 2012 the applicants (including the fourth and fifth applicants, who had taken over the proceedings from K.B. following her death on 14 June 2010) lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) challenging the decisions of the lower courts. 78. On 15 March 2012 the Constitutional Court dismissed the applicants’ constitutional complaint, endorsing the reasoning of the Supreme Court. The decision of the Constitutional Court was served on the applicants’ representative on 27 April 2012.