This is a decision of the ECtHR concerning the scope of Articles 3 and 8 as they apply to the victims of harassment.
In this case the victims were Dalibor Đorđević (the first applicant) a man with both learning and phsyical disabilities in his mid 30’s who suffered a sustained program of abuse and harassment at the hands of children attending a school some 70m from his home and his mother Radmila Đorđević (the second applicant) who was also his carer.
The harassment persisted for a period of at least four years. Some of the incidents that occurred were extremely serious, including one occasion when the first applicant received cigarette burns to his hands and another when his head was hit against iron park railings. But most of the incidents were more insidious: jostling and pushing the applicant whenever he left his home, throwing snowballs at him, banging the walls of the flat late at night, spitting at the windows, gathering on a bench outside and talking loudly late in to the night and shouting verbal abuse concerning the first applicant’s disability and nationality (both applicants are Serbian).
The cumulative effect of all this on Dalibor Đorđević were extremely serious. The stress made him frightened to leave his home and even physically ill. His mother also suffered considerable disruption to her life in her efforts both to care for her son and to ensure a safe environment for him.
The second applicant repeatedly complained first to the police, and then to the Ombudswoman for Persons with Disabilities, social services and the school authorities. Some efforts had been made to identify and interview the perpetrators of some of the more serious offences by the police, but because the perpetrators were under the age of 14 which is the age of criminal responsibility in Croatian law the State Attorney’s Office advised the second applicant that no criminal proceedings could be taken against them.
The harassment persisted for at least two more years. In that time the actual pool of perpetrators changed. The police continued to come out when called and move on the children causing trouble. But no systematic action was taken to tackle the harassment despite the fact the authorities were well aware that the applicants were suffering daily abuse.
In its judgment the Court first held that the violence and continuous threat of violence that the first applicant had suffered could in principle meet the minimum level of severity necessary to amount to a violation of Article 3 – the right to freedom from torture, inhuman and degrading treatment. And that with regard to the second applicant the harassment, whilst not threatening her physical integrity, had disrupted her daily life to the extent necessary to amount to a potential violation of Article 8 – the right to respect for private and family life.
It then considered whether the applicants had exhausted all domestic remedies and concluded that in all practical senses they had, since the criminal justice system offered no protection at all, and the civil measures available to the applicants did not allow for interim relief which would protect them from harassment.
Finally they considered whether, by failing to take adequate steps to act on their knowledge of the situation, the Croatian authorities had violated the Convention.
Article 3 of the ECHR only exceptionally imposes positive obligations on the state to protect individuals from inhuman or degrading treatment. It is well established that the positive obligation can only arise where the state:
‘Knew or ought to have known at the time of the existence of real and immediate risk of an identified individual from the criminal acts of a third party…Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action…’ [para 139]
In this instance the Croatian authorities had violated Article 3 of the ECHR. Whilst there had been sporadic attempts to address the abuse these had not been translated into effective action. :
‘…the Court finds that no serious attempt was made to assess the true nature of the situation complained of, and to assess the systematic approach which resulted in the absence of adequate and comprehensive measures. Thus, the findings of the police were not followed by any further concrete action: no policy decisions had been adopted and no monitoring mechanisms have been put in place to recognise and prevent further harassment.’ [para 148]
As a result Dalibor Đorđević was indeed the victim of a violation of Article 3. Furthermore, the state’s failure to protect Dalibor had knock-on effects on his mother which resulted in a violation of her Article 8 rights.
The problem of disablist hate crime perpetrated by young teenage children against disabled adults is not unusual and it is certainly not specific to Croatia. What makes this case interesting is how very ordinary it is. Nothing about the facts make it stand out as a case which could only occur in Zagreb, or Croatia, or in a Central European country. It could easily occur in London, or Copenhagen or Paris. In fact the European Disability Forum who intervened in the case cited Mencap’s 2010 research report into disablist hate crime to support their contention that there is still a widespread lack of consistency in practice in reporting disablist hate crimes.
The crimes Dalibor and Radmila Đorđević suffered were particularly hard to police because there were a great many perpetrators, most of whom were below the age of criminal responsibility. In addition whilst the acts had a very high frequency with some exceptions most were not serious offences in themselves. This is no way mitigates the severity of their suffering. But it helps to explain why the various agencies involved continued to hope that such a difficult problem might turn out to belong to somebody else.
There is still a policing gap to be bridged here. In England the tragic deaths of Fiona Pilkington and Francecca Hardwick highlighted the urgency of addressing this issue nearly 5 years ago. Perhaps Đorđević v Croatia should give other families in a similar position hope that the courts will also support them before their desperation becomes as acute.