FIFTH SECTION
CASE OF ŠPADIJER v. MONTENEGRO
(Application no. 31549/18)
 
 
 
JUDGMENT
 
Art 8 • Positive obligations • Authorities’ failure to protect the applicant from bullying by colleagues • Art 8 applicable • Flawed implementation of civil and criminal law • Failure to take account of the overall context, including potential whistle-blowing
 
STRASBOURG
9 November 2021
 
FINAL
 
09/02/2022
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Špadijer v. Montenegro,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Síofra O’Leary, President,
 Mārtiņš Mits,
 Ganna Yudkivska,
 Stéphanie Mourou-Vikström,
 Ivana Jelić,
 Arnfinn Bårdsen,
 Mattias Guyomar, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application (no. 31549/18) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Montenegrin national, Ms Daliborka Špadijer (“the applicant”), on 27 June 2018;
the decision to give notice to the Montenegrin Government (“the Government”) of the complaints concerning the alleged violation of the applicant’s psychological integrity, the failure of the relevant bodies to protect her from that violation and the lack of an effective domestic remedy in that regard, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 5 October 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns primarily bullying at work affecting the applicant’s psychological integrity and the failure of the relevant domestic bodies to protect her, the complaint falling under Article 8 of the Convention. The applicant also complains under Article 13 of the Convention that she did not have a relevant effective domestic remedy. THE FACTS
2. The applicant was born in 1978 and lives in Podgorica. She was represented by Mr D. Lalićević, a lawyer practising in Podgorica. 3. The Government were represented by their Agent, Ms V. Pavličić. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant worked as a prison guard in the Institute for the Execution of Criminal Sanctions (“the IECS”; Zavod za izvršenje krivičnih sankcija) in Podgorica as of September 1998. At the relevant time she was covering the position of head of shift in the women’s prison (šef smjene Kazneno popravnog doma za žene). The incidents and the ensuing events
6. In January 2013 the applicant reported five of her colleagues for indecent behaviour at work on New Year’s Eve. As established later in disciplinary proceedings, some of the male guards had entered the women’s prison and one of them had had “physical contact” with two inmates there, which had been tolerated by some of the female guards (see paragraph 13 below). 7. On 12 January 2013 the applicant had a telephone conversation with another colleague, N.R. He told her that she should not have reported the other colleagues unless they had killed somebody, and that it was her fault that they would get fired. He also said that a large number of colleagues were against her, that from then on she should be prepared for anything and that she should take care of what she was doing. 8. In the night of 13 January 2013 the front windscreen of the applicant’s car was broken in front of the building where she lived. On 14 January 2013 an on-site inspection (uviđaj) took place and the State prosecutor was informed. 9. On 17 January 2013 the applicant filed a complaint at the police station about her conversation with N.R. and the incident with the car. She also attached video footage taken by a camera from a neighbouring building, in which apparently the perpetrator could be seen damaging the windscreen and planting something underneath the car. The same day the police interviewed N.R. and informed the deputy State prosecutor accordingly. According to the official police records the prosecutor considered that the elements of a criminal offence subject to public prosecution or of a misdemeanour were lacking in the situation involving N.R. 10. On 18 February and 3 October 2013 the applicant requested the Ministry of the Interior and the Police Directorate respectively to deal with her complaint. 11. Between 26 and 28 February 2013 she allegedly reported some other irregularities at work, but without receiving any response whatsoever. There are no more details in the case file in this regard. 12. On 8 March 2013 a prison driver, M.Ž., who was taking some female colleagues to their homes, refused to take the applicant, and instead left her in another part of town. When she explained that it was not where she lived, he replied: “What do you expect, you’re known for your sharp tongue and behaviour”. After a short argument, he drove her home. 13. On 20 March 2013 the colleagues who had been reported for indecent behaviour on New Year’s Eve were found guilty in disciplinary proceedings. It was established that one male guard had allowed two other male guards to enter the women’s prison on New Year’s Eve, and that one of them, A.V., had talked with two inmates and had “physical contact” with them. Two female guards had allowed this. One of these two female guards was also found to have talked and danced with some of the inmates. The applicant’s colleagues were fined between 20% and 30% of their salaries for between two and three months. During the proceedings A.V. was also temporarily suspended from work and received 60% of his salary. 14. On 24 June 2013 the applicant allegedly came across A.V., who told her: “Here is the stinking bitch. If she would only lose 50 kilos she might look acceptable” (“Evo je smrdulja smrdljiva, da barem smrša 50 kilograma ličila bi na nešto”), and spat next to her. The applicant reported the incident to Ra.S., head of the prison’s security unit. After having enquired with him the next day, Ra.S. told the applicant that A.V. had denied her allegations but that they would both be summoned by the governor of the IECS. 15. As she was not summoned by the governor, the applicant turned to the IECS assistant governor, S.R. He said that he would talk to A.V., but that as of September she would be transferred to a remand prison. When the applicant enquired if she had done something wrong or if she was being punished for something, he replied that he wanted it that way (“da je to njegova volja”) and that even if the Minister of Justice were to call him, the applicant would no longer be head of shift of the women’s prison. 16. Two or three days later the governor of the IECS, M.R., confronted the applicant with A.V, who denied the applicant’s allegations. The applicant suggested that they look at the video footage of the place where the encounter had taken place, but M.R. replied that the cameras were not functioning. The applicant enquired with the relevant officer and was told that the cameras were in fact functioning. 17. The applicant submitted that between January and August 2013: (a) the head of the penitentiary facility had forbidden her to organise duty shifts; (b) some of her colleagues had kept ignoring her, and had failed to perform specific tasks allocated by her, without facing any sanctions; (c) her report on the illicit actions of one of the prisoners had never been dealt with; the same prisoner had said that she was not worried about the report as she had been told that the applicant would soon be “out of there” (“leti sa posla”); (d) she had been ordered to make coffee twice a day for one of the prisoners, and had complained about it to the assistant governor. She submitted that, on an unspecified date thereafter, the governor of the IECS asked her what had given her the right to complain to the assistant governor about that. 18. On 16 August 2013 the applicant requested her employer to initiate proceedings for her protection against bullying (“za zaštitu of mobinga”), and described all of the above incidents. She complained of continuous insults and humiliation at work which were causing health problems. 19. On 26 August 2013 the applicant went on holiday, and on 10 September 2013 she went on sick leave. 20. Between 12 September and 30 October 2013 she asked the inspection authority (Uprava za inspekcijske poslove), the prison management and the mediator (the officer in charge of proceedings for bullying in the employer company; see paragraph 48 below) to deal with her request. 21. On 6 November 2013 the mediator dismissed her request as unfounded (odbacuje se kao nesonovan). He considered, in substance, that even assuming that her allegations were true, the conduct complained of had not been continuous. The incidents with N.R. and the damage to her car had taken place outside of the workplace and thus were not within the IECS’s sphere of responsibility, and her transfer to another position had been due to her failing to do her job properly. 22. On 20 November 2013 the applicant instituted civil proceedings against her employer. She described the above events and maintained that her personal and professional integrity had been violated as a result. She also submitted that no decision on her appointment had been issued as of November 2013 and that her salary was being calculated on the basis of a lower coefficient. 23. During the proceedings an expert witness found that the applicant had psychological problems related to conflict at work and that her capacity to function was permanently reduced by 20% (trajno umanjenje životne aktivnosti) owing to post-traumatic stress disorder and an adjustment disorder with episodes of reactive psychosis. 24. On 10 February 2015, at about 9.15 p.m., just over a week before the domestic court was due to rule in the ongoing civil proceedings (see paragraph 28 below), the applicant was assaulted in a car park where she was collecting her daughter after her classes. The attacker approached her from behind and inflicted several blows on the back of her neck and the lower part of her back, and around the left elbow and the thighs. When leaving the attacker told her: “Be careful what you’re doing”. 25. The same evening the applicant was examined by a doctor in the emergency ward of the clinical centre (Urgentni centar), who noted a haematoma of about 3 cm in diameter on the back of her neck, pain in the left shoulder and significantly reduced mobility of the left arm. The doctor also notified a police officer on duty in the emergency ward that the applicant had been assaulted. The police officer talked to the applicant and advised her to file a complaint the next morning. 26. The next morning, on 11 February 2015, the applicant filed a complaint with the police and attached a medical report. She submitted that the attacker had been “rather short”, and described his clothing. 27. It transpires from the official police records of 16 February 2015 that the State prosecutor was informed of this and ordered the police to take action to identify the attacker. A police officer made an on-site inspection and spoke to people living in the building in front of which the incident had taken place, but neither measure enabled the attacker to be identified. There was no video surveillance at the scene either. The State prosecutor ordered that the police keep working on the identification of the perpetrator. 28. On 19 February 2015 the Court of First Instance (Osnovni sud) in Podgorica ruled against the applicant in civil proceedings (see paragraph 22 above). The court considered her submissions to be true, and observed that the respondent party had offered no evidence to the contrary. It found, on the basis of the expert witness opinion, that the applicant’s psychological problems were related to conflict at work. However, it considered, in substance, that the events complained of did not amount to bullying as they had lacked the necessary frequency. In particular, bullying was a form of systematic psychological ill-treatment, rather than being sporadic and individual, and as such required repetition of the actions over a certain period. According to most academics in this field, that meant at least once a week for at least six months. That position was also accepted in the domestic case-law, notably in judgments P.br.2226/11 and P.br.768/11 (see paragraphs 60-61 below). 29. The court examined, in particular, the incidents of 13 January, 8 March and 24 June 2013. The conversation with N.R. had not amounted to psychological ill-treatment, and even assuming that the incident with M.Ž. could be considered as such, it had taken place on 8 March 2013 and the applicant had gone on holiday on 26 August 2013; therefore it had not lasted for six months, nor had it occurred once a week. The events involving the assistant governor and M.R. did not amount to bullying either, especially given that, in accordance with the systematisation of jobs, the applicant had in any event not met the criteria for the position she had been covering at the time. The court considered that these incidents taken together did not amount to bullying either, and that there had been no behaviour aimed at violating the applicant’s dignity and integrity, causing fear or creating a hostile, degrading or insulting environment, worsening her working conditions or leading to her isolation and making her resign of her own accord. 30. The court also held that the fact that no decision had been made on the applicant’s appointment after November 2013, and the fact that her salary was calculated on the basis of a different coefficient, did not constitute bullying either. If she considered that she had received a lower salary than she was entitled to she could have filed a compensation claim in that regard, and she would be informed of the new decision on appointment on her return from sick leave. 31. The court did not examine the following submissions: that one of the applicant’s subordinates had failed to perform the allocated tasks; that the governor of the prison had forbidden the applicant to organise duty shifts, which she had done previously; that the applicant had been ordered to make coffee for one of the prisoners twice a day; that a report concerning the search of one prisoner’s rooms had never been dealt with and that the prisoner in question had said that she was not worried about the report as the applicant would soon be fired. 32. The applicant appealed. She submitted that the court had had all the right evidence before it, but that its assessment of that evidence had been incorrect, as had its interpretation of the relevant legislation. She also submitted that on 10 February 2015 she had been assaulted (see paragraph 24 above). 33. On 13 November 2015 and 15 June 2016 the first-instance judgment was upheld by the High Court (Viši sud) and the Supreme Court (Vrhovni sud) respectively. The High Court confirmed that for actions to constitute bullying it was necessary for them to be repeated over a longer period and continuously. In the applicant’s case there had been three incidents in about six months, which could not be considered as amounting to bullying. The court also held that the fact that there had been no new appointment decision and that the applicant’s salary had been calculated on the basis of the lower coefficient did not amount to bullying either. The expert witness’s finding that the applicant had suffered from stress had reflected her subjective feelings about the said events. The court further found that the assault against the applicant was irrelevant given that she had not proved that it had been related to the respondent party’s actions. The Supreme Court held, inter alia, that “bullying, as a form of discrimination, [could] constitute discrimination only if the treatment [was] based on personal characteristics of the employee or of a group of employees”. 34. On 2 August 2016 the applicant lodged a constitutional appeal. She complained of a violation of her dignity, honour and reputation and of her personal and professional integrity. She also complained of a lack of an effective remedy. She referred to all of the above-mentioned incidents, and submitted that the two incidents in respect of which she had filed criminal complaints were related. She referred, inter alia, to Articles 20 and 28 of the Constitution, Article 3 of the Convention and Article 1 of Protocol No. 12. 35. On 15 November 2017 the Constitutional Court dismissed the applicant’s constitutional appeal. The court examined it under Articles 28 and 32 of the Constitution, Articles 6 and 14 of the Convention, and Article 1 of Protocol No. 12. It found, in substance, that there were no grounds to find that the applicant had been bullied at work, and that the Supreme Court’s judgment was in accordance with the legislation, providing sufficient, relevant and constitutionally acceptable reasons. The Constitutional Court made no reference to the criminal complaints filed by the applicant and the alleged failure of the domestic authorities to act on them. This decision was served on the applicant on 5 January 2018. The applicant’s employment
36. The applicant worked in the IECS between September 1998 and May 2016. 37. Between 1 February 2005 and 1 June 2012 she was a State employee in the women’s prison. 38. Between 1 June 2012 and 1 December 2013 she was temporarily appointed as an adviser, covering the position of the head of shift. The appointment was extended on a monthly basis, with the relevant decisions specifying that this was to ensure the smooth and successful functioning of the security unit. 39. Between 10 September 2013 and May 2016 the applicant was on sick leave. 40. Until 1 December 2013 her salary was calculated on the basis of a coefficient of 5.01, and after that on the basis of a coefficient of 3.77. 41. In May 2016 the applicant retired owing to a complete loss of working capacity caused by illness. The Pension Fund Disability Commission (Prvostepena invalidska komisija) specified in its findings that the applicant’s psychological problems had appeared for the first time during 2013 after a stressful situation at work, after which she had received continuous outpatient psychiatric treatment. The Government submitted that these were the data the Commission had obtained from the applicant, and not the Commission’s own findings. Other relevant facts
42. On 2 September 2014 the Ombudsman’s office, acting on the applicant’s complaint, informed her that it did not consider her rights to have been violated. 43. On 18 February 2020 the Council for Civic Control of the Police, acting at the applicant’s request, found that the legislation did not set a time-limit within which an assault needed to be reported, but that it went without saying that it should be reported as soon as possible. It found that in this particular case the applicant had reported the assault in the shortest time possible, following the advice of the police officer on duty in the hospital (see paragraphs 24-26 above). RELEVANT LEGAL FRAMEWORK AND PRACTICE
Relevant domestic lawConstitution of Montenegro 2007 (Ustav Crne Gore; published in the Official Gazette of Montenegro – OGM – nos. 01/07 and 038/13)

44. Article 28 guarantees everyone’s dignity and personal security, the inviolability of his or her physical and psychological integrity, and his or her privacy and personal rights. It also prohibits torture and inhuman and degrading treatment. 45. Articles 20 and 32 provide for the right to a legal remedy and the right to a fair trial respectively. Labour Act (Zakon o radu, published in OGM nos. 049/08, 026/09, 088/09, 026/10, 059/11, 066/12, 031/14, 053/14 and 004/18)
46. Section 8a of the Labour Act prohibits every form of ill-treatment at work (bullying), that is, any behaviour towards an employee or a group of employees at work which is repeated and is aimed at violating, or represents a violation of, the dignity, reputation, personal or professional integrity or status of the employee, or which causes fear or creates a hostile, humiliating or insulting environment, worsens working conditions or makes the employee isolate himself or herself or prompts him or her to terminate the employment relationship. The same section provides that other details relating to prevention of and protection from bullying are further specified in a separate statute. Prohibition of Ill-treatment at Work Act (Zakon o zabrani zlostavljanja na radu, published in OGM nos. 030/12 and 054/16)
47. Section 2 defines bullying as any active or passive behaviour at work or related to work in respect of an employee or a group of employees which is repeated and is aimed at violating, or represents a violation of, the dignity, reputation or personal and professional integrity of the employee, or which causes fear or creates a hostile, humiliating or insulting environment, worsens working conditions or makes the employee isolate himself or herself or makes him or her terminate the employment relationship or another contract. Bullying also encompasses inciting or persuading others to this behaviour. A perpetrator of bullying may be an employer who is a physical person, a person in a position of responsibility with an employer that is a legal entity, an employee or a group of employees at work or another person with whom an employee or an employer comes into contact when performing his or her work. 48. Section 9 provides, inter alia, that an employer with more than thirty employees must designate one or more persons who will mediate between the parties in cases of bullying (“the mediator”). 49. Section 12 provides that an employee is entitled to protection from bullying. 50. Sections 15-24 describe the procedure for protection from bullying. In particular, an employee who considers himself or herself to be a victim of bullying must request in writing that a mediator initiate proceedings for protection from bullying. The mediation proceedings are treated as urgent and the mediator must initiate them within three days of receiving a written request. The mediation proceedings must be completed within eight days of their initiation, either by: (a) the parties reaching a written agreement; (b) the mediator issuing a decision that mediation has failed; or (c) the parties waiving further proceedings. The time-limit for completing the mediation proceedings may, in exceptional cases, be extended to thirty days at most. If the parties in dispute fail to reach an agreement the mediator must serve the person who requested the proceedings with notification that the mediation has not been successful, within three days from the expiry of the above time-limit. 51. Section 25 provides that an employee who is not satisfied with the outcome of mediation proceedings may, inter alia, file a civil claim before the courts. 52. Section 27 provides that if during the proceedings the claimant makes out an arguable case that there was bullying within the meaning of section 2, the burden of proving that there was no bullying shifts to the respondent party. Criminal Procedure Code 2009 (Zakonik o krivičnom postupku; published in OGM nos. 057/09, 049/10, 047/14, 002/15, 035/15, 058/15 and 028/18)
53. Article 256 provides that a criminal complaint is to be submitted to the relevant State prosecutor. A complaint submitted to the police will be accepted and immediately transmitted to the relevant State prosecutor. 54. Article 256a provides that the State prosecutor must issue a decision within three months at the latest. By way of exception, in complex cases, the decision may be issued within six months at the latest (except in cases involving secret surveillance measures). The prosecutor may request in writing an extension for another month. 55. Article 271 provides that the State prosecutor must dismiss the complaint on procedural grounds by a reasoned decision if, inter alia, the offence at issue is not a criminal offence, or it is not a criminal offence subject to public prosecution. The person who lodged the complaint and any other injured party must be informed about this decision, and must also be informed that they may file an objection against it. 56. Article 59 § 1 provides that when a State prosecutor finds that there are no grounds for public prosecution he or she must inform the injured party accordingly within eight days and serve him or her with the decision in that regard, while informing him or her of the possibility of taking over the prosecution. Internal Affairs Act (Zakon o unutrašnjm poslovima, published in OGM nos. 044/12, 036/13, 001/15 and 087/18)
57. Sections 16 and 17, taken together, provide that a person who considers that his or her rights and freedoms have been violated by police actions may file an objection or initiate court proceedings and seek compensation. IECS Rules on Internal Organisation and Job Systematisation (Pravilnik o unutrašnjoj organizaciji i sistematizaciji Zavoda za izvršenje krivičnih sankcija)
58. The 2004 IECS rules on job systematisation provided that candidates for the position of adviser required, inter alia, a specific college degree and had to have passed the examination for senior guards supervisor. The position of State employee required a high school diploma. 59. Under the 2006 IECS rules on job systematisation, candidates for the position of adviser required a specific college degree and had to have passed the examination for guards supervisor. Domestic case-law
60. On 26 November 2012 and 10 May 2013 respectively the Court of First Instance in Podgorica ruled in two cases against claimants alleging that they had been victims of bullying (P.br. 768/11 and P.br. 2226/11 respectively). The court found in both cases that in order for ill-treatment to amount to bullying, most academics considered that it needed to be repeated at least once a week for at least six months. In one of the two cases the court also held that besides the frequency, in order to amount to bullying the impugned behaviour had to place the person in question in an unequal position on one of the grounds set out in section 2(2) of the Prohibition of Discrimination Act. In both cases the single judge deciding the case was the same one who later ruled in the applicant’s case before the Court of First Instance. 61. Between 15 September 2017 and 24 May 2019 the Courts of First Instance in Cetinje and Podgorica respectively ruled in two cases in favour of claimants and found that they had been victims of bullying. In the first case the claimant had been a victim of bullying between June 2012 and June 2015, and in the second one between January 2013 and April 2017. Both judgments were upheld by the High Court in Podgorica, on 18 May 2018 and 6 September 2019 respectively. None of those decisions included a requirement that in order to amount to bullying the ill-treatment needed to have been repeated at least once a week for at least six months. Relevant international material
62. Part I of the European Social Charter (Revised) provides that the Parties accept as the aim of their policy, to be pursued by all appropriate means both national and international in character, the attainment of conditions in which a number of rights and principles, including the right to dignity at work, may be effectively realised. Part III provides, inter alia, that each of the Parties undertakes to consider Part I as a declaration of the aims which it will pursue by all appropriate means. 63. Article 26 provides for the right to dignity at work. Paragraph 2, in particular, provides that, with a view to ensuring the effective exercise of the right of all workers to protection of their dignity at work, the Parties undertake, in consultation with employers’ and workers’ organisations, to promote awareness, information and prevention of recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct. 64. Montenegro has ratified the European Social Charter (Revised), declaring itself legally bound to accept a number of its provisions, although Article 26 § 2 is not amongst them. 65. On 21 June 2019 the United Nations International Labour Organisation (ILO) adopted a Convention concerning the elimination of violence and harassment in the world of work. The Convention entered into force on 25 June 2021. Montenegro has not ratified it. THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
66. The applicant complained under Articles 3 and 6 of the Convention of a violation of her psychological integrity caused by continuous active and passive bullying at work, and of the failure of the domestic bodies to protect her from it. 67. The Government contested the applicant’s complaint. 68. The Court reiterates that the scope of a case referred to it in the exercise of the right of individual application is determined by the applicant’s complaint. A complaint consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). 69. The Court considers that the complaint in the present case falls to be examined under Article 8 of the Convention (see Sandra Janković v. Croatia, no. 38478/05, § 27, 5 March 2009, and Dolopoulos v. Greece (dec.), no. 36656/14, §§ 35-37, 17 November 2015). Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The parties’ submissionsThe Government

70. The Government submitted that the present application was manifestly ill-founded or, alternatively, that there had been no violation of Article 8. In particular, the applicant had referred to only a few situations at work, in which there had been no element of bullying. Her colleagues’ comments had been at most inappropriate, and in any event had lacked the necessary frequency to amount to systematic psychological ill-treatment. The decisions issued in that regard, both by the mediator and by the courts, had been duly reasoned, with the latter also referring to the existing case-law. The applicant had only a high school diploma and thus had not met the conditions for the position of adviser. She had been appointed to that position only temporarily, owing to a lack of staff. As she had been on sick leave continuously as of September 2013 until her retirement she could not have been appointed to a specific post, pursuant to the relevant statutory provisions, and her salary had therefore been calculated in accordance with her permanent position as a State employee. 71. The stress that the applicant had suffered had been her subjective experience (doživljaj) of the events in question, and the fundamental condition for the respondent’s party responsibility, namely a causal relationship between the harm the applicant had suffered and the respondent party’s actions, was not met. This had also been recognised by the Ombudsman. 72. The damage to the applicant’s car and the assault on her had been isolated incidents, unrelated to each other, and the latter was also unrelated to her claims that she had been a victim of bullying at work. In general, the relevant criminal-law mechanisms in Montenegro were satisfactory. In particular, the applicant’s complaint about the assault had been duly processed. Even assuming that the prosecutor had not acted entirely in accordance with the Criminal Procedure Code in terms of the formal actions taken, these had been only technical shortcomings and oversights which should not be viewed with excessive formalism. The applicant, for her part, should have indicated more concretely and in more detail the facts of the assault. The fact that she had not filed a complaint until the next day was also suspicious. Finally, if she had been dissatisfied with the police actions she could have complained in that regard (see paragraph 57 above). 73. The Pension Fund Commission’s statement that the first psychological problems had appeared during 2013 after a stressful situation at work was actually based on data obtained from the applicant, and not on the findings of the Commission itself (see paragraph 41 in fine above). The applicant
74. The applicant reaffirmed her complaint. In particular, the ill-treatment at work had violated her dignity, honour and reputation as well as her personal and professional integrity, which was how bullying was defined in the relevant legislation. It had caused her considerable mental, social and psychosomatic problems which had ultimately led to a permanent loss of working capacity, as established by the Pension Fund, and as a result of which she had had to retire at the age of 37. 75. Despite this, the State bodies had failed to protect her. In particular, the proceedings before her employer had not been in compliance with the relevant legislation (see paragraph 50 above). The conversation with S.R. had not been a professional exchange indicating the criteria provided for in the rules on job systematisation, and the finding that she had not been performing her duties satisfactorily had been unfounded (see paragraph 38 in fine above). The courts had failed to take into account a number of situations at work (see paragraph 31 above) and instead had believed her employer, who had not been happy that she had been reporting irregularities at work, not only by her colleagues but by her superiors too. 76. The relevant State bodies had not acted in compliance with the relevant legislation in dealing with her two criminal complaints either. She had reported the assault immediately the next morning, following the advice of the police officer on duty in the hospital, and had provided all the necessary details. The fact that she had not complained about the work of the police officer in charge did not deprive her of her right to have her complaint dealt with. 77. The Ombudsman had ruled only on the basis of her employer’s submissions, without summoning and hearing the applicant and the persons to whom the complaint related; this was not in compliance with the relevant legislation either. 78. She had been temporarily appointed as adviser also between 1 September and 1 December 2013, that is, when on sick leave. Finally, the first domestic judgments ruling in favour of victims of bullying had been issued after she had already lodged her constitutional appeal.

Outcome for Article 8: violation