Harassment of a prison guard – whistleblower

In the case of Špadijer v. Montenegro (application no. 31549/18, 09.11.2021) the European Court of Human Rights held, unanimously, that there had been a violation of Article 8 (right to respect for private life) of the European Convention on Human Rights.

The case concerned the alleged bullying of a prison guard following applicant’s reporting an inappropriate contact of the male guards with female prisoners, and her attempts to address this with the authorities.

Applicant Ms. Špadijer alleged that numerous and ongoing bullying incidents followed, and that on a few occasions the prison hierarchy had failed to support her. In September 2013, she went on sick leave. A complaint to the mediator was dismissed. In November 2013 she went to court, unsuccessfully. The court stated that the incidents had not amounted to bullying, but did find that she was suffering from post-traumatic stress from the incidents. While the proceedings were ongoing, she was attacked, beaten up and warned by an unknown assailant. The first-instance judgment was upheld by the High Court and the Supreme Court, and a constitutional complaint lodged by her was unsuccessful. 

Firstly, the Court held that the applicant’s main complaint should be examined under Article 8 rather than Articles 3 and 6. The Court reiterated that States have a duty to protect the physical and psychological integrity of individuals from others, including setting up a legal framework with that aim. There were, the Court confirmed, remedies in domestic law for bullying. However, those remedies also had to work in practice. It considered that the mediation process had not been in compliance with the law. Despite a connection between the incidents in question and the applicant’s state of health having been established, she had received no protection from the courts, who adjudged the frequency of the incidents insufficient to warrant action. 

The Court reiterated that complaints of bullying should be examined in detail and in their totality, and not rejected merely on the basis of how frequently or infrequently they occurred, with the entire context being taken into account; some of the individual incidents remained unexamined altogether. 

Overall, the Court found that the manner in which the legal mechanisms had been implemented in the applicant’s case – including the important whistle-blowing context – had been inadequate, constituting a violation of the positive obligation on the State to protect the applicant under this Article.

The Court ruled that there was no need to examine the complaints under Article 13 on the merits, as the issues were the same as those examined under Article 8.

References from the official website of the European Court of Human Rights