CASE OF A. v. CROATIA
Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
41. The relevant parts of the Criminal Code (Kaznenei zakon Republike Hrvatske, Official Gazette nos. 110/1997, 28/1998, 50/2000, 129/2000, 51/2001, 11/2003, 105/2004, 84/2005 and 71/2006) read as follows: “A security measure of compulsory psychiatric treatment may be imposed only as regards a perpetrator who, at the time of committing a criminal offence, suffered from significantly diminished responsibility [and] where there is a risk that the factors giving rise to the state [of diminished responsibility] might incite the future commission of a further criminal offence. A security measure of compulsory psychiatric treatment may be imposed, under the conditions set out in paragraph 1 of this Article, during the execution of a prison sentence, in lieu of a prison sentence or together with a suspended sentence. Compulsory psychiatric treatment shall be imposed for as long as the grounds for its application exist, but [it shall not] in any case exceed the prison term ... Compulsory psychiatric treatment shall not under any circumstances exceed three years. ...” “Anyone who inflicts bodily injury on another person or impairs another person's health shall be fined or sentenced to imprisonment for a term not exceeding one year.” “Criminal proceedings for the offence of inflicting bodily injury (Article 98) shall be instituted by means of private prosecution.” “(1) Anyone who threatens another person with harm in order to intimidate or disturb that person shall be fined up to one hundred and fifty monthly wages or sentenced to imprisonment for a term not exceeding six months. (2) Anyone who seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year. ... (4) Criminal proceedings for the criminal offences defined in paragraphs 1 and 2 of this Article shall be instituted upon [a private] application.” “A family member who by an act of violence, ill-treatment or particularly contemptuous behaviour places another family member in a humiliating position shall be sentenced to imprisonment for a term of between six months and five years.” 42. The relevant provisions of the Protection against Domestic Violence Act (Official Gazette no. 116/2003, Zakon o zaštiti of nasilja u obitelji) provide: “This Act defines the term domestic violence, persons considered as family members within the meaning of this Act, the manner of protection of family members and the types and purpose of minor offences sanctions.” “(1) The provisions of the Minor Offences Act are to be applied in respect of minor offences in the sphere of domestic violence, unless otherwise provided by this Act. (2) All proceedings instituted under this Act shall be urgent.” “Domestic violence is: – any use of physical force or psychological pressure against a person's integrity; – any other act by a family member which might cause physical or mental suffering; – causing fear, fear for personal safety or harm to a person's dignity; – physical assault irrespective of whether it has caused injury; – verbal assaults, insults, cursing, calling names or other forms of serious harassment; – sexual harassment; – stalking and all other forms of harassment; – illegal isolation of a person or restricting his or her freedom of movement or communication with others; – causing damage to or destruction of property or attempting to do so.” “(1) Minor offences sanctions for protection from domestic violence are fines, imprisonment and protective measures. ...” “A court may order the following protective measures against the perpetrator of an act of domestic violence (a) compulsory psycho-social treatment; (b) prohibiting access to the victim's proximity; (c) prohibition on harassing and stalking the victim of violence; (d) removal from flat, house or other living premises; (e) providing protection to a person exposed to violence; (f) compulsory treatment for addiction; (g) seizure of objects intended for or used in the commission of a minor offence.” “The purpose of protective measures is to prevent domestic violence, to secure the necessary protection of the health and safety of a person exposed to violence and to remove the circumstances favourable to or capable of inciting the commission of a further minor offence.” “(1) A protective measure of obligatory psycho-social treatment may be imposed in respect of the perpetrator of an act of domestic violence in order to put an end to the violent behaviour of the perpetrator or where there is a risk that the perpetrator might reoffend against persons under section 3 of this Act. (2) The measure under paragraph 1 of this section shall remain in place as long as the reasons for which it has been imposed exist, but for no longer than six months. ...” “(1) A protective measure prohibiting access to the victim's proximity may be imposed against a person who has committed an act of domestic violence where there is a risk that he or she might reoffend. (2) A decision imposing a measure prohibiting access to the victim's proximity shall define the places or areas covered as well as the distance of access. (3) The duration of a measure under paragraph one of this section shall not be shorter than one month or exceed one year. ...” “(1) A protective measure prohibiting the harassing and stalking of a victim of violence may be ordered against a person who has committed violence by harassing or stalking and where there is a danger of his or her reoffending against persons under section 3 of this Act. (2) The measure under paragraph 1 of this section shall be ordered for a period from one month to one year. ...” “(1) A protective measure of providing protection to a person exposed to violence may be ordered in respect of a person exposed to violence for his or her physical protection and to enable him or her to take from home his or her personal documents, clothes, money or other items necessary for everyday life. (2) The measure under paragraph 1 of this section shall include an order to the police to escort the person exposed to violence and protect that person while he or she takes his or her personal items and to escort him or her while leaving the home. (3) The duration of this measure shall be defined by the duration of implementation of the court order.” “(1) Protective measures may be ordered at the request of a person exposed to violence or of the police, or of the court's own motion. (2) The protective measures under section 7 (a) and (g) shall be ordered by the court of its own motion. (3) The protective measures under this Act shall be ordered for a period which shall not be less than one month, nor shall it exceed two years from the date when a decision in minor offence proceedings has become final or from the date of completion of a prison term, if not otherwise provided under this Act.” “(1) The protective measures under section 7 (b), (c), (d) and g) of this Act may be ordered independently even where no other sanction has been imposed. (2) The protective measures under paragraph 1 of this section may be imposed at the request of a person who has lodged a request for minor offences proceedings to be instituted, in order to remove a direct risk to the life of persons exposed to violence or other family members. (3) A court shall give a decision under paragraphs 1 and 2 of this section within 48 hours. ...” “(1) The perpetrators of domestic violence are obliged to comply with the protective measure [ordered against them]. (2) Persons who do not comply with the protective measure ordered against them shall be punished for a minor offence by a fine which may not be less than 3,000 Croatian kuna or by at least forty days' imprisonment. ...” 43. The relevant part of the Minor Offences Act (Zakon o Prekršajima, Official Gazette no. 88/2002) reads: “A fine may be prescribed in respect of an individual in a minimum amount of 300 Croatian kuna and a maximum amount of 10,000 Croatian kuna ...” “The prison term may be prescribed for a minimum duration of three days and a maximum of thirty days. On an exceptional basis, in respect of the most serious minor offences, it may be prescribed for a maximum duration of sixty days. ...” 44. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows: “The main purpose of a prison term, apart from humane treatment and respect for the personal integrity of the person serving the prison term, ... is the development of his or her capacity to live after release in accordance with the laws and general customs of society.” (1) The individual programme for the enforcement of a prison term (hereinafter “the enforcement programme”) consists of a combination of pedagogical, working, leisure, health, psychological and safety activities and measures aimed at adapting the time spent in detention to the character traits and needs of the prisoner and the type and possibilities of the particular penitentiary or prison. The enforcement programme shall be designed with a view to fulfilling the purposes of a prison term under section 7 of this Act. (2) The enforcement programme shall be designed by the prison governor on a proposal from the penitentiary or prison expert team... (3) The enforcement programme shall contain information on ... special procedures (... psychological and psychiatric assistance ... special security measures...) ...” 45. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention. 46. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape and abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising any abuse of position by the perpetrator. The Recommendation also states that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children's rights are protected during proceedings. 47. With regard to violence within the family, the Committee of Ministers recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services.