In the case of Remetin v. Croatia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefčvre, President,
Elisabeth Steiner,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 20 November 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
29525/10) against the Republic of Croatia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Croatian national, Mr Tomislav Remetin (“the
applicant”), on 27 April 2010.
The Croatian Government (“the Government”) were
represented by their Agent, Ms Š. Stažnik.
On 8 June 2011 the applicant’s complaints
concerning the alleged lack of an effective investigation into his allegations
of ill-treatment by a private individual were communicated to the Government
under Articles 2 and 3 in conjunction with Article 13 of the Convention. It was
also decided to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
On 16 February 2012 the Vice-President of the
First Section decided, under Rule 54 § 2 (c) of the Rules of Court, to invite
the parties to submit further observations in respect of the issues concerning
the State’s positive obligations under Articles 3 and 8 of the Convention as
regards the applicant’s complaints.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1989 and lives in Dubrovnik.
A. Background to the case
On 17 April 2003 at around 5.50 p.m., the
applicant telephoned the Dubrovnik Police Station (Policijska postaja Dubrovnik) alleging that he had been attacked and beaten by an unknown man. Two police
officers were immediately sent to the scene.
The police officers interviewed the applicant,
who was a boy of thirteen at the time, in the presence of his mother, L.R. The
applicant stated that he had been playing in the playground of the Marin Držić Primary School (Osnovna škola Marina Držića) with his friends
D.D., D.B. and H.K. with a ball he had found there. At some point another boy
had come and asked for the ball, saying that it had been his, but the applicant
had not believed him and had refused to return it. Soon after, the boy’s father
had come, grabbed the applicant’s t-shirt, and kicked and hit him on the back
and head. The man had then taken the ball and left.
The police established the identity of the man as
I.Š.
At around 7.00 p.m. on the same date the police
interviewed I.Š., who denied that he had physically attacked the applicant.
I.Š. stated that he had only grabbed the applicant’s t-shirt in order to take
the ball. He had also shouted but had not used any physical force.
At 8.15 p.m. the same day the applicant was seen
by a doctor in the Dubrovnik Health Centre (Dom zdravlja Dubrovnik), who
drew up a report on the injuries sustained by the applicant. The relevant part
of the report reads:
“According to the person escorting the injured person (his father),
[the injured person] was attacked by a man because that man thought that he had
taken a ball from his son; [the man] slapped him and kicked him four to five
times on the body; which all happened around 6 p.m. in the playground of the Marin Držić Primary School.
Diagnosis: bruising on the left cheek, bruising on the left
lumbar region and around the spleen.”
The injuries
were qualified as lesser bodily injuries.
B. Minor offence proceedings against I.Š.
On 6 May 2003 the Dubrovnik Police Station asked
the Dubrovnik Minor Offences Court (Prekršajni sud u Dubrovniku) to
institute minor offence proceedings against I.Š. on charges of disturbing the public
peace and order.
On 9 June 2003 the applicant’s father informed
the Dubrovnik Minor Offences Court that he had orally requested information
about the case but had been denied any information. On the same date the
Dubrovnik Minor Offences Court informed the applicant’s father that he could consult
the case file and copy documents thereby.
Hearings were held on 14 and 16 June 2004.
On 7 April 2005 the Dubrovnik Minor Offences
Court discontinued the proceedings against I.Š. on the ground that the prosecution
had become time-barred.
C. Criminal proceedings against I.Š.
On 9 June 2003 the applicant’s father lodged a
complaint with the Dubrovnik Municipal State Attorney’s Office (Općinsko
državno odvjetništvo u Dubrovniku) against I.Š., claiming that he had
physically attacked the applicant and had threatened him. On 30 June and 28
August 2003 the Dubrovnik Municipal State Attorney’s Office asked the Dubrovnik
Police to investigate these allegations.
The police interviewed the applicant’s father,
the alleged assailant I.Š., and witnesses V.D., D.D., D.L.B., H.K. and
D.Č. and obtained relevant medical documentation concerning the applicant.
On 7 July, 11 July and 12 September 2003 respectively, the records of
interviews and other documents were forwarded to the Dubrovnik Municipal State
Attorney’s Office.
In their statements to the police, D.D., D.L.B.
and H.K. confirmed the applicant’s version of events. The relevant part of the
record of D.D.’s interview reads:
“... they had been sitting near an olive tree and Tomislav had
found a ball which Š. (son of I.) had been looking for in the playground.
Then a bearded man had jumped over a wall of the playground and
stood in front of them asking who Tomi was. When Tomislav had answered, that
man had attempted to catch him. He had then grabbed his t-shirt and slapped
Tomislav twice and also kicked him twice in the hip area. After that, he had
shouted at Tomislav and told him that he would beat him again if he ever went
near his son again.”
In his interview with the police D.L.B. stated:
“Around 5.30 p.m. a man who had come to the
playground had approached them and asked who “Tomi” was. When Tomislav had
answered, that man had hit him on the head with a ball he had found there (Tomislav
had had his head covered with his hands at the time). After that he had grabbed
[Tomislav’s] t-shirt and then kicked him in the area of his hips and then
slapped him. The man had also threatened Tomislav, [telling him that he was]
not to go near his children ...”
The relevant part of the record of the interview with H.K.
reads:
“... he was together with Tomislav and D.D. in the playground
when a bearded man had approached them and asked for Tomislav. When Tomislav
had answered, the man had grabbed his t-shirt and slapped him and after that
kicked him twice in the hip area.
... the man had also shouted at Tomislav and threatened that he
would beat him again if he touched his son.”
On 12 December 2003 the Dubrovnik Municipal
State Attorney’s Office indicted I.Š. in the Dubrovnik Municipal Court (Općinski
sud u Dubrovniku) on charges of violent behaviour. The relevant part of the
indictment reads:
“... in the playground of the Marin Držić Primary School,
without any provocation, after he had approached Tomislav Remetin, who was
there with his friends H.K., D.D. and D.B.L., in their presence and in the presence
of other passers-by, [he] grabbed [Tomislav Remetin’s] t-shirt and kicked him twice
on the back and then slapped him, threatening him not to go near his son,
therefore, [he] degraded another
person by subjecting them to violent abuse in public ...”
The Dubrovnik Municipal State Attorney’s Office
asked that the applicant, H.K., D.D. and D.L.B. be called as prosecution
witnesses and that the relevant medical documentation be examined.
At a hearing held on 14 June 2006 I.Š. gave
evidence. He reiterated that he had not used any physical force against the
applicant and refused to answer any questions put to him by either the judge
conducting the proceedings or the parties.
At a hearing held on 8 September 2006 the
applicant gave evidence. The relevant part of his statement reads:
“While we were playing I heard that somebody, who was
approaching me from behind, asked for Tomislav Remetin and one of my friends
pointed at me. As that man was already really close to me, he grabbed my
t-shirt in the area of my left shoulder towards my chest. I was already a bit
turned towards him so he grabbed me with both hands and started shaking me,
saying that he would kill me if I ever went near his son. I think he was also saying
something else but I don’t remember now. Now I remember that he was saying
something like I had pierced his son’s ball. I managed to get rid of his hold
somehow, but while we were still close to each other, he kicked me a couple of
times on my body somewhere in the area of my stomach, ribs and back. So, he
kicked me on the rear side of the body and slapped me in the head two to three
times.”
After the examination of the applicant, the Deputy
State Attorney reiterated his proposal that H.K., D.D. and D.L.B. be called as
prosecution witnesses. The applicant’s father asked to be heard as a witness
for the prosecution in addition to the applicant’s grandmother, who he stated had
relevant knowledge about the medical treatment of the applicant. The defence
lawyer asked that I.Š.’s children be called as defence witnesses. The judge
conducting the proceedings dismissed all of the requests to call witnesses and
concluded the proceedings, holding that all relevant facts had been
sufficiently established.
In his final address to the court, the Deputy
State Attorney abandoned the prosecution of I.Š. on the ground that there was insufficient
evidence against him. The relevant part of the record of the Deputy State
Attorney’s address reads:
“Namely, I consider that during the proceedings, with
particular emphasis on today’s oral evidence given by the injured party Tomislav
Remetin, there is insufficient evidence to, in my view, prove the substantive
elements of the offence of violent behaviour under Article 331 of the Criminal
Code.
...
And so, I do not consider that the acts of the accused amount
to any other criminal offence liable to public prosecution.”
The applicant’s father stated that he was taking
over the prosecution as a subsidiary prosecutor on behalf of the applicant and
requested the adjournment of the trial in order to prepare to conduct the
prosecution. The judge conducting the proceedings adjourned the trial and
ordered the applicant’s father to submit an indictment within eight days.
On 15 September 2006 the applicant’s father
lodged an indictment with the Dubrovnik Municipal Court against I.Š. on charges
of violent behaviour, inflicting bodily injury, making serious threats and
verbal insult. He also lodged a claim for damages (imovinskopravni zahtjev)
against I.Š., seeking 10,000 Croatian kunas (HRK).
On 19 September 2006 the applicant’s father asked
the Dubrovnik Municipal Court to grant him legal aid, claiming that he did not
have sufficient knowledge to prosecute the case himself and that he did not
have sufficient means to afford legal representation.
On the same date the applicant’s father
complained to the Dubrovnik County State Attorney’s Office (Županijsko
državno odvjetništvo u Dubrovniku) that the Dubrovnik Municipal State
Attorney’s Office had dismissed all of the charges against I.Š. without any
witnesses being heard.
On 3 October 2006 the Dubrovnik Municipal Court
dismissed the applicant’s father’s request for legal aid on the grounds that applicable
domestic law did not provide for legal aid in respect of the private
prosecution of the offences for which I.Š. had been indicted.
On 8 January 2007 the applicant’s father lodged
an amended indictment with the Dubrovnik Municipal Court against I.Š. on
charges of violent behaviour, inflicting bodily injury, serious threats, verbal
insult and ill-treatment of a child or a minor. He also amended the claim for
damages, increasing the award sought to HRK 90,000.
On 12 January 2007 the Dubrovnik Municipal Court
held a hearing at which I.Š. pleaded not guilty. The applicant’s father asked
that H.K., D.D. and D.L.B. be called as prosecution witnesses in addition to
the applicant’s grandmother and mother, who he submitted also had relevant knowledge
of the event. The judge conducting the proceedings dismissed his request to call
the witnesses and concluded the proceedings.
On 12 January 2007 the Dubrovnik Municipal Court
acquitted I.Š. of the charges of violent behaviour. The relevant part of the
judgment reads:
“Namely, by its nature, the offence under Article 331 of the
Criminal Code (violent behaviour) is unprovoked conduct by a perpetrator which manifests
itself in violent abuse, and the very intent to violently abuse [another
person] is the mens rea of this offence.
Contrary to this, this juvenile court, based on the statements of
the aggrieved party, the minor Tomislav Remetin, and the accused, I.Š., which are
mutually compatible in substance, namely, [they are] compatible in that they
both speak about the children or about the ball and the child of the accused,
can see provocation for the ... conduct of the accused, I.Š.”
The Dubrovnik Municipal Court also discontinued
the proceedings in respect of the charges of inflicting bodily injuries and
making serious threats on the grounds that the prosecution for these offences
had become time-barred because the applicant’s father had not lodged his
indictment within the statutory limitation period set by applicable domestic
law. The charges of verbal insult were not examined separately, as the
Dubrovnik Municipal Court found that that offence had not been described in the
body of the indictment. The Dubrovnik Municipal Court also instructed the
applicant that his civil claim could be pursued in separate civil proceedings.
On 31 January 2007 the applicant’s father lodged
an appeal with the Dubrovnik County Court against the first-instance judgment,
claiming that the Dubrovnik Municipal Court had erred in its factual findings
and in the application of substantive and procedural law.
On 11 March 2008 the Dubrovnik County Court
upheld the part of the judgment of the Dubrovnik Municipal Court by which I.Š.
had been acquitted of the charges of violent behaviour, quashed the part of
that judgment discontinuing the proceedings as regards the charges of
inflicting bodily injury and making serious threats and ordered a retrial in
respect of those charges. The County Court found that the statutory limitation
period had stopped running when the Dubrovnik Municipal State Attorney’s Office
had lodged the indictment against I.Š. with the Dubrovnik Municipal Court and
not when the indictment had been lodged by the applicant as subsidiary
prosecutor.
On 22 April 2008 the Dubrovnik County State
Attorney’s Office instructed the Dubrovnik Municipal State Attorney’s Office to
take over the prosecution of I.Š. before the Dubrovnik Municipal Court on
charges of making serious threats.
On 8 May 2008 the Dubrovnik Municipal State
Attorney’s Office informed the Dubrovnik Municipal Court that it was taking
over the prosecution of I.Š. on charges of making serious threats as indicted
by the applicant’s father as subsidiary prosecutor.
On 8 July 2008 the applicant’s father submitted
an application to the Dubrovnik Municipal Court to expedite the proceedings.
At a hearing on 11 December 2008 the Deputy
State Attorney amended the indictment against I.Š. The relevant part reads:
“On 17 April 2003, at around 5.20 p.m., near no. 6 Voltina
Street, Dubrovnik, in the playground of the Marin Držić Primary School,
after a physical conflict he had with Tomislav Remetin, with the intent of
creating fear and anxiety, [he] told [Tomislav Remetin] that he was going to
kill him if he ever went near his son again, which made Tomislav Remetin fear
for his personal safety,
therefore, [he] made a serious threat to another person that he
would kill him ...”
I.Š. pleaded not guilty and the applicant reiterated his
previous statement. Witness H.K. gave evidence. The relevant part of the record
of his statement reads:
“On that day, I was with the injured party, D.D.
and D.L.B. in the playground of the Marin Držić Primary School. We were
playing around the school and at one point the accused came over. He asked for
Tomislav Remetin and after that they had an argument over his son’s ball. The
accused was shouting at Tomislav and after that he slapped him twice and I also
saw that he kicked him in the liver or thereabouts but I don’t know which leg
exactly or which side of the body he kicked Tomislav on.”
Another hearing was held on 30 December 2008 at
which witnesses D.D. and D.L.B. gave their evidence. Witness D.L.B. stated:
“On that day Tomislav Remetin, H.K., D.D. and I, were playing
in front of the Marin Držić Primary School. At one point I saw the accused
jumping over a wall and then he asked for Tomislav Remetin. When Tomi
responded, the accused hit him with a ball and then he started to beat him. I
remember that he kicked him in the stomach area and after that he hit him on the
head. He also started threatening him, [saying] “we will see”, and he was
mentioning his sons.”
Witness D.D. testified:
“On that day I was sitting near an olive tree in the school’s
playground and I saw the accused jumping over a wall and going towards
Tomislav. I saw that he kicked [Tomislav] and slapped him twice. After that, he
threatened that he would beat him if he ever went near his son ...”
After examination of the witnesses, the judge conducting the
proceedings dismissed all proposals for the examination of other witnesses and concluded
the trial.
On 30 December 2008 the Dubrovnik Municipal
Court discontinued the proceedings against I.Š. on charges of violent behaviour,
inflicting bodily injuries, making serious threats, defamation and ill-treatment
of a child or a minor on the grounds that the accused had already been
acquitted by a final judgment for the same facts under a different legal qualification.
It also instructed the applicant that he could pursue his civil claim in
separate civil proceedings.
On 9 January 2009 the applicant lodged a
complaint about the length of the proceedings with the Constitutional Court (Ustavni
sud Republike Hrvatske) which was forwarded to the Supreme Court (Vrhovni
sud Republike Hrvatske) for examination. The applicant complained that the
proceedings before the Dubrovnik Municipal Court and the Dubrovnik County Court
had lasted for an excessively long time and that there was a possibility that
the proceedings would become time-barred.
On 20 January 2009 the Dubrovnik Municipal State
Attorney’s Office lodged an appeal with the Dubrovnik County Court against the first-instance
judgment. On 23 January 2009 the applicant’s father also lodged an appeal.
On 9 April 2009 the Supreme Court dismissed the
applicant’s complaint about the length of the proceedings before the Dubrovnik
Municipal Court and the Dubrovnik County Court as ill-founded. The Supreme
Court found that the relevant period to be taken into account started on 15
September 2006 when the applicant lodged his claim for damages in the criminal
proceedings and that the proceedings had therefore lasted for two years, six
months and twenty-five days, which was not considered as excessively long.
On 5 March 2009 the Dubrovnik County Court quashed
the judgment of the Dubrovnik Municipal Court and ordered a retrial. The County
Court found that the judgment of the Dubrovnik Municipal Court had procedural
defects since it referred to the charges of violent behaviour which had been
finally adjudicated and thus not susceptible to any further examination or
decision.
At a hearing on 6 April 2009 the Dubrovnik
Municipal Court discontinued the proceedings against I.Š. on charges of
inflicting bodily injuries and making serious threats on the grounds that I.Š. had
already been acquitted by a final judgment for the same facts under a different
legal qualification. The applicant was instructed that he could pursue his
civil claim in separate civil proceedings.
On 6 April 2009 the Dubrovnik Municipal State
Attorney’s Office lodged an appeal with the Dubrovnik County Court. On 7 April 2009
the applicant’s father also lodged an appeal.
On 28 May 2009 the Dubrovnik County Court
discontinued the proceedings on the grounds that the prosecution had become
time-barred on 17 April 2009.
On 9 June 2009 the applicant lodged a constitutional
complaint with the Constitutional Court against the decision of the Supreme
Court by which his complaint about the length of the proceedings had been dismissed.
This complaint was forwarded to a three judge appeal panel of the Supreme
Court.
On 2 July 2009 the applicant lodged a
constitutional complaint with the Constitutional Court against the judgment of
the Dubrovnik County Court complaining about the manner in which the provisions
of the criminal law had been applied in connection with a violent attack against
him.
On 26 November 2009 the Constitutional Court
declared the applicant’s constitutional complaint inadmissible on the grounds that
the proceedings in issue had not concerned any of his civil rights or
obligations or any criminal charge against him.
On 20 October 2010 a three judge appeal panel of
the Supreme Court declared the applicant’s appeal against the decision of the
Supreme Court in respect of the length of the proceedings inadmissible as having
been lodged out of time.
D. Civil proceedings instituted by the applicant
On 26 February 2009 the applicant lodged a civil
action in the Dubrovnik Municipal Court against I.Š., claiming compensation for
non-pecuniary damage. The applicant contended that the physical attack by
I.Š. had made him feel humiliated and had caused him continuous mental
suffering.
On 9 December 2009 the Dubrovnik Municipal Court
dismissed the applicant’s civil action on the grounds that it had become
time-barred. The Municipal Court found that the applicant had lodged his civil
action with the court conducting the criminal proceedings on 15 September 2006,
which was out of the statutory limitation period set by applicable domestic
law. This period could only have been extended if criminal responsibility had
been established, which was not the case in respect of the applicant’s claim as
the proceedings against I.Š. had been discontinued by the Dubrovnik County
Court.
On 25 January 2010 the applicant lodged an
appeal with the Dubrovnik County Court, complaining that the Dubrovnik
Municipal Court had erred in the application of applicable substantive and
procedural law.
On 24 May 2011 the Dubrovnik County Court
dismissed the applicant’s appeal and upheld the first-instance judgment on the grounds
that the applicant’s civil action had become time-barred.
On 26 September 2011 the applicant lodged a
constitutional complaint with the Constitutional Court against the judgment of
the Dubrovnik County Court. It appears that the proceedings before the Constitutional Court are still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant
domestic law
Constitution
57. The relevant part of the Constitution of
the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos.
56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001,
55/2001, 76/2010, 85/2010) reads:
Article 35
“Everyone has a right to respect for and legal protection of
his private and family life, dignity, reputation and honour.”
Constitutional Court Act
The relevant part of section 62 of the
Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske,
Official Gazette nos. 99/1999, 29/2002, 49/2002) reads:
“1. Everyone may lodge a constitutional complaint with the
Constitutional Court if he or she deems that a decision of a state body, a body
of local and regional self-government, or a legal person with public authority
concerning his or her rights and obligations, or about a suspicion or an accusation
of a criminal act, has violated his or her human rights or fundamental
freedoms, or his or her right to local and regional self-government guaranteed
by the Constitution (hereinafter: a constitutional right)...”
Criminal Code
The relevant parts of the Criminal Code (Kazneni
zakon, Official Gazette no. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001)
provide:
Article 8
“(1) Criminal proceedings in respect of criminal offences shall
be instituted by the State Attorney’s Office in the interest of the Republic of Croatia and its citizens.
(2) In exceptional circumstances the law may provide for
criminal proceedings in respect of certain criminal offences to be instituted
on the basis of a private prosecution or for the State Attorney’s Office to
institute criminal proceedings following [a private] application.”
BODILY INJURY
Article 98
“Anyone who inflicts bodily injury on another or impairs
another’s health shall be fined or sentenced to imprisonment for a term not
exceeding one year.”
MAKING THREATS
Article 129
“(1) Whoever seriously threatens another person with harm so as
to intimidate or disturb him shall be fined a minimum of one hundred and fifty
daily wages or sentenced to imprisonment for a term not exceeding six months.
(2) Whoever seriously threatens to kill or to inflict serious
bodily injury on another person, or to kidnap or deprive a person of his
liberty, or inflict harm by starting a fire, causing an explosion by using
ionizing radiation or by other dangerous means, or to destroy a person’s social
or financial standing, shall be fined or sentenced to imprisonment for a term
not exceeding one year.
(3) If the criminal offence referred to in paragraphs 1 or 2 of
this Article is committed against an official or a responsible person in
connection with his work or position, or against a number of people, or if it
has caused a major disturbance to citizens, or if the threatened person is thus
put in a difficult position for a long period of time, or if it is committed
while the perpetrator is a member of a group or a criminal organisation, the
perpetrator shall be sentenced to imprisonment for a term from three months to
three years.
(4) Criminal proceedings for the criminal offence referred to
in paragraphs 1 or 2 of this Article may be instituted following [a private]
application.”
VIOLENT BEHAVIOUR
Article 331
“(1) Whoever degrades another person by subjecting them to
violent abuse, ill-treatment or particularly offensive behaviour in public
shall be sentenced to imprisonment for a term from three months to three years.”
Code of Criminal Procedure
The relevant provisions of the Code of Criminal
Procedure (Zakon o kaznenom postupku,
Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and
62/2003) provide:
Article 2
“(1) Criminal proceedings shall only be instituted and
conducted at the request of a qualified prosecutor. ...
(2) In respect of criminal offences subject to public
prosecution the qualified prosecutor shall be the State Attorney and in respect
of criminal offences that may be prosecuted privately the qualified prosecutor
shall be a private prosecutor.
(3) Unless otherwise provided by law, the State Attorney shall
undertake a criminal prosecution where there is a reasonable suspicion that an
identified person has committed a criminal offence subject to public
prosecution and where there are no legal impediments to the prosecution of that
person.
(4) Where the State Attorney finds that there are no grounds to
institute or conduct criminal proceedings, the injured party may take his place
as a subsidiary prosecutor under the conditions prescribed by this Act.”
Articles 47 to 61 regulated the rights and
duties of private prosecutors and of injured parties acting as subsidiary
prosecutors. The Criminal Code distinguished between these two roles. A private
prosecutor (privatni tužitelj) was an injured party who brought a
private prosecution in respect of criminal offences for which such a prosecution
was expressly prescribed by the Criminal Code (these were offences of a lesser
degree). An injured party acting as a subsidiary prosecutor (oštećeni
kao tužitelj) was a person taking over criminal proceedings in respect of
criminal offences subject to public prosecution where the relevant prosecuting
authorities, for whatever reason, had decided not to prosecute. If the injured
party was a minor, he or she was represented by his or her legal guardian during
the proceedings.
Pursuant to Article 58, the State Attorney’s Office was
authorised, on a discretionary basis, to take over a prosecution from a subsidiary
prosecutor at any point before the end of the trial.
Minor Offences against Public Order and Peace Act
The relevant part of the Minor Offences against
Public Order and Peace Act (Zakon o prekršajima protiv javnog reda i mira,
Official Gazette nos. 5/1990, 47/1990 and 29/1994) reads:
Section 6
“Anyone who behaves in a particularly offensive or rude manner
in a public place by insulting citizens or disturbing the peace shall be liable
to a fine ... or to a term of imprisonment not exceeding sixty days.”
State Administration System Act
The relevant provision of the State Administration
System Act (Zakon o sustavu državne uprave, Official
Gazette of the Republic of Croatia nos. 75/1993, 92/1996, 48/1999, 15/2000,
127/2000, 59/2001, 199/2003, 79/2007), reads as follows:
Section 14
“Damage caused to a citizen, legal entity or any other party by
an illegal or irregular act of the state administration body, local
administration body or any legal entity with public powers when exercising
authorities of the state administration, shall be redressed by the Republic of Croatia.”
B. Relevant
domestic practice
Constitutional Court’s practice
On 14 May 2001 in case no. U-III-791/1997 the Constitutional Court accepted an injured party’s constitutional complaint concerning a
violation of the right to life. The relevant part of the decision reads:
“Under the [Code of Criminal Procedure], in a situation where
the State Attorney is the prosecutor, the injured party has only very limited
rights in the proceedings. However, as soon as the State Attorney is no longer a
party (if he drops the charges) the injured party can act as a subsidiary
prosecutor in the proceedings. In other words, when the State Attorney does not
appear [as a prosecutor] in the proceedings, the [injured] party is (or can be)
the subsidiary prosecutor. This should be, mutatis mutandis, applied in
respect of a constitutional complaint. Since the State Attorney cannot lodge a
constitutional complaint ... the injured party can represent himself. In this
case [the injured party] can lodge a constitutional complaint.”
In its decision of 13 February 2004 in case no.
U-IIIA-232/2003 the Constitutional Court declared a subsidiary prosecutor’s
constitutional complaint concerning the length of criminal proceedings
inadmissible on the grounds that the proceedings in issue had not concerned his
civil rights or obligations or any criminal charge against him. The relevant
part of the decision reads:
“It is clear from the constitutional complaint that the
criminal proceedings ... did not concern the applicant’s civil rights or
obligations or any criminal charge against him. In the criminal proceedings the
applicant was not the defendant and he failed to lodge a civil claim, which he
had notably pursued in separate civil proceedings.
Therefore ... the applicant does not have the necessary locus
standi before the Constitutional Court ...”
The Constitutional Court followed the same
approach in its decision of 23 December 2004 in case no. U-III-2729/2004 in which
it declared a subsidiary prosecutor’s constitutional complaint concerning the
outcome of criminal proceedings inadmissible on the same basis as noted above.
In its decision of 22 October 2008 in case no.
U-IIIVs-3511/2006, the Constitutional Court accepted a constitutional complaint
concerning the length of criminal proceedings lodged by a subsidiary prosecutor
who had not had lodged a civil claim in those criminal proceedings. The
relevant part of the decision reads:
“The approach taken by the lower courts, by which the applicant
did not have the right to lodge a length-of-proceedings complaint because she,
as a subsidiary prosecutor in criminal proceedings, ... had failed to lodge a
civil claim ... reflects the approach previously taken by this court.
... [T]he Constitutional Court considers that that approach
should be revisited on the grounds of the public interest and the protection of
victims’ rights.
...
Therefore, the Constitutional Court considers that the question
of whether a subsidiary prosecutor in criminal proceedings has a right to have
the competent court decide within a reasonable time [whether] the defendant be
found guilty and punished according to law, cannot be considered only from the
perspective of the civil claim which the injured party may have against the
defendant. Such a restrictive approach would deprive the subsidiary prosecutor
[of the ability] to exercise his right to bring a subsidiary prosecution and it
would run contrary to the principle that rights should be effective ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2, 3, 8 AND 13 OF
THE CONVENTION
The
applicant complained, under Articles 2, 3, 8 and 13 of the Convention, about
the failure of the domestic authorities to afford him adequate protection from
an act of violence. The Court considers that in the particular circumstances of
the present case these complaints fall to be examined under Article 8 of the
Convention, which, in so far as relevant, reads:
“1. Everyone has the right to respect for his
private ... life ...
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.”
A. Admissibility
1. Exhaustion of domestic remedies
(a) The parties’ arguments
The Government argued that the applicant had
failed to exhaust domestic criminal and civil law remedies. They submitted that
if the applicant had believed that the dismissal of charges against I.Š. by the
State Attorney or the fact that the prosecution had become time-barred had violated
his rights, he could have lodged criminal complaints against the officials
involved in his case on charges of abuse of authority and negligent performance
of duties. That would have led to a special inquiry capable of establishing
whether there had been any omissions in the conduct of the competent state
organs. The Government also pointed out that, as regards the length of the
criminal proceedings, the applicant had had an effective and available domestic
remedy - a request for protection of the right to a trial within a reasonable
time and for compensation for the excessive length of the proceedings. The
applicant had availed himself of this remedy and the Supreme Court had dismissed
his complaint. However, the applicant had failed to use further remedies
against that decision in due time, which had deprived the domestic authorities
of the opportunity to decide on his complaint. Furthermore, the Government
pointed out that the case-law of the Constitutional Court had shown that a constitutional
complaint is an effective domestic remedy that can be used by an injured party
in respect of the length of the criminal proceedings.
The Government also argued that the applicant
could have brought a civil action for damages under the relevant provisions of
the Civil Obligations Act against I.Š. Civil liability was much broader than criminal
liability and the domestic courts could have awarded damages regardless of any
criminal conviction. As regards protection against alleged unlawfulness in the
conduct of the domestic authorities, the Government pointed out that the
applicant could have lodged a civil action against the Republic of Croatia pursuant to the Public Administration System Act (Zakon o sustavu državne uprave).
The applicant argued that he had exhausted all
available legal remedies.
(b) The Court’s assessment
The Court reiterates that under Article
35 § 1 of the Convention, it may only deal with an application after
all domestic remedies have been exhausted. The purpose of Article 35 is to
afford the Contracting States the opportunity of preventing or putting right
the violations alleged against them before those allegations are submitted to the
Court (see, for example, Mifsud
v. France (dec.) [GC], no. 57220/00, § 15, ECHR
2002-VIII). The obligation to exhaust domestic remedies requires an applicant
to make normal use of remedies which are effective, sufficient and accessible
in respect of his Convention grievances. To be effective, a remedy must be
capable of resolving directly the impugned state of affairs (see Balogh
v. Hungary, no. 47940/99, § 30,
20 July 2004).
As to the Government’s arguments concerning the ability
for the applicant to lodge a criminal complaint on charges of abuse of
authority and negligent performance of duties against the state officials
involved in his case, the Court notes that the applicant complained to both the
police and the State Attorney’s Office of a violent attack against him by
another individual. These allegations were, prima facie, supported by the
statements of three witnesses and relevant medical documentation. Moreover, the
applicant actively participated in the proceedings that followed his complaints
as a subsidiary prosecutor.
The applicant also complained before various
domestic authorities of a lack of diligence in the proceedings and about the
possibility that the prosecution of I.Š. could become time-barred. These
actions taken by the applicant should have been followed by the effective
implementation of domestic criminal-law provisions by the domestic authorities
which would satisfy the requirements of the State’s positive obligations under
the Convention. However, the Court does not see how the possibility of lodging
a criminal complaint against the state officials involved in the criminal
proceedings in respect of the applicant’s complaint of a violent attack by
another individual could be considered as having satisfied these requirements.
Therefore, having in mind the actions taken by the applicant, the Court
considers that the applicant was not required to lodge a criminal complaint as
suggested by the Government.
As to the Government’s argument that the
applicant had failed to pursue his complaint about the length of the proceedings,
the Court considers that the length-of-proceedings remedies were insufficient, as
it was not merely the length of the proceedings which was in issue (see, mutatis
mutandis, Šilih v. Slovenia [GC], no. 71463/01, §§ 169-170, 9 April 2009). Rather, the main question
here is whether in the circumstances of the case seen as a whole the State
could be said to have complied with its positive obligations under Article 8 of
the Convention.
. As regards the Government’s argument
that the applicant could have pursued his complaints in civil proceedings
against I.Š. and also against the State under the Public Administration
System Act, the Court firstly notes that the
applicant lodged a civil action in the Dubrovnik Municipal Court against I.Š.
seeking damages (see paragraphs 52-56). However, owing to the fact that the
criminal proceedings against I.Š. had become time-bared, the Dubrovnik
Municipal Court dismissed the applicant’s civil action. In any event the
Court is inclined to believe that effective deterrence against attacks on the
physical integrity of a person requires efficient criminal-law mechanisms that
would ensure adequate protection in that respect (see X and Y v. the
Netherlands, 26 March 1985, § 27, Series A no. 91; August v. the United Kingdom (dec.),
no. 36505/02, 21 January 2003; and M.C. v. Bulgaria, no. 39272/98,
§ 50, ECHR 2003-XII, and Sandra Janković v. Croatia,
no. 38478/05, § 36, 5 March 2009).
Therefore, the applicant must be regarded as having brought the substance of his
complaints to the notice of the national authorities and as having sought
redress through the appropriate national channels.
It follows that the Government’s objection
concerning the exhaustion of domestic remedies must be rejected.
2. Compliance with the six-month time-limit
(a) The parties’ arguments
The Government argued that that the applicant
had failed to bring his complaint before the Court within the six-month
time-limit. In the Government’s view, the final domestic decision had been the
judgment of the Dubrovnik County Court of 28 May 2009 and not the decision of
the Constitutional Court of 26 November 2009 on which the applicant had relied when
he had lodged his application with the Court. In the Government’s view, the
applicant should have been aware of the case-law of the Constitutional Court to
the effect that constitutional complaints brought by subsidiary prosecutors in
criminal proceedings were inadmissible. Finally, the Government argued that in
respect of any complaint concerning the substantive aspect of Article 8 of the
Convention the six-month time-limit had to be calculated from 17 April 2009, the
date on which the criminal prosecution against the applicant’s assailant had
become time-barred.
The applicant argued that he had had the ability
to bring his complaints before the Constitutional Court and that only by
logding a constitutional complaint had he exhausted all domestic remedies.
(b) The Court’s assessment
The Court reiterates that the object of the
six-month time-limit under Article 35 § 1 is to promote legal certainty,
by ensuring that cases raising issues under the Convention are dealt with in a
reasonable time and that past decisions are not continuously open to challenge.
It marks out the temporal limits of supervision carried out by the organs of
the Convention and signals to both individuals and State authorities the period
beyond which such supervision is no longer possible (see, amongst other
authorities, Walker
v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).
As a rule, the six-month period runs from the
date of the final decision in the process of exhaustion of domestic remedies.
Article 35 § 1 cannot be interpreted in a manner which would require an
applicant to inform the Court of his complaint before his position in
connection with the matter has been finally settled at the domestic level. In
this respect the Court has already held that before brining complaints against
Croatia to the Court, in
order to comply with the principle of subsidiary, applicants are in principle
required to afford the Croatian Constitutional Court the opportunity to remedy
their situation (see Orlić v. Croatia, no. 48833/07, § 46, 21 June 2011).
The Court also reiterates that the requirements
contained in Article 35 § 1 concerning the exhaustion of domestic remedies
and the six-month period are closely interrelated, since not only are they
combined in the same Article, but they are also expressed in a single sentence
whose grammatical construction implies such correlation (see Hatjianastasiou
v. Greece, no. 12945/87, Commission decision of 4 April 1990, and Berdzenishvili
v. Russia (dec.), no. 31697/03, ECHR 2004-II (extracts)).
. In this respect, the Court notes at the outset that Article 35 of the
Croatian Constitution guarantees protection of private life and dignity as a fundamental
human right. Therefore, the Court reiterates its findings in other
Croatian cases that under section 62 of the Constitutional Court Act, anyone
who deems that a decision of a State body concerning his or her rights and
obligations, or a suspicion or an accusation of a criminal act, has violated
his or her human rights or fundamental freedoms may lodge a constitutional
complaint against that decision and that, from the wording of section 62 of the
Constitutional Court Act, the applicant had reason to believe that his
constitutional complaint was a remedy that required to be exhausted (see Dolenec
v. Croatia, no. 25282/06, § 200, 26
November 2009). Furthermore, the
Court notes that, contrary to the Government’s arguments, the practice of the
Constitutional Court as regards the admissibility of complaints submitted by
subsidiary prosecutors in criminal proceedings, is inconclusive (see paragraphs
64-67).
. In
the light of the importance of the protection of person’s physical and moral
integrity against any acts of violence, the Court considers that it cannot be
held against the applicant if he afforded the Constitutional Court the
opportunity to take appropriate steps to remedy the
alleged failures in the proceedings which had been instituted before the lower
courts in respect of the acts of violence against him. This conclusion is
supported by the fact that only by using this remedy did the applicant comply
with the principle of exhaustion of domestic remedies in line with the
principle of subsidiarity. Therefore, the Government’s
argument must be rejected.
3. Conclusion
The Court considers that this part of the
application is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’
arguments
The applicant argued that from the opening of
the criminal proceedings against I.Š., his actions had been wrongly
characterised as only the offence of violent behaviour and not also as the offences
of making serious threats and inflicting bodily injuries. Moreover, the Deputy
State Attorney had abandoned the prosecution although several witnesses had
corroborated the applicant’s version of the events in question. Therefore he
had had to pursue the case as a subsidiary prosecutor. Eventually, however, the
State Attorney’s Office had taken over the prosecution for the offence of
making serious threats five years later, when it was already too late. He
further argued that one fact remained irrefutable, which was that he, a
thirteen-year old child at the time, had been beaten and threatened by I.Š. The
proceedings in respect of that incident had required to be conducted promptly.
However, the first hearing before the Dubrovnik Municipal Court had been held
three years after the incident and the prosecution had eventually become
time-barred. These failures could not be attributed to him in any way but rather
had been exclusively attributable to the manifest lack of diligence on the part
of the domestic authorities, namely, the courts and the State Attorney’s
Office. The situation had caused him significant distress and had caused him to
feel disappointed in the legal system. The memories of the attack would remain with
him until the end of his life.
The Government argued that the applicant had
failed to rely expressly on Article 8 of the Convention in his application to
the Court. The Government also stressed that the investigation into the
applicant’s allegations had been effective, as the police and the State
Attorney’s Office had reacted promptly and had acted according to law. Namely,
a couple of hours after the alleged attack the police had interviewed the
applicant and five days later had instituted the minor offence proceedings. The
police had also informed the applicant of the course of the investigation. Following
a request by the State Attorney’s Office, the police had undertaken further
interviews and had obtained relevant medical documentation. The State Attorney’s
Office had gathered all relevant information and had lodged an indictment. The
abandonment of the prosecution of I.Š. by the State Attorney’s Office had been
sufficiently reasoned and had not been arbitrary. The decision to abandon the
prosecution had been vindicated when the Dubrovnik County Court had upheld the first-instance
judgment by which I.Š. had been acquitted. The State Attorney’s Office had also
prosecuted I.Š. for the offence of making serious threats. However, the
criminal investigation had not shown that any offence warranting public
prosecution had been committed. The Government stressed that there was no
obligation under the Convention for criminal proceedings to result in a
conviction.
As to the fact that the prosecution had become
time-barred, the Government argued that the applicant had failed to appear at a
hearing before the Minor Offences Court and that the prosecution had later become
time-barred. They also reiterated that, as regards the criminal proceedings,
the applicant could have pursued his complaint about the length of the
proceedings against I.Š. before the Supreme Court. Even though the applicant
had lodged such a complaint he had failed to lodge an appeal with the Supreme
Court in due time.
2. The Court’s
assessment
While the essential object
of Article 8 is to protect the individual against arbitrary action by the
public authorities, there may in addition be positive obligations inherent in
effective “respect” for private and family life and these obligations may
involve the adoption of measures in the sphere of the relations of individuals
between themselves (see, mutatis mutandis, X and Y v. the Netherlands, cited above, §§ 23-24, Mikulić
v. Croatia, no. 53176/99, § 57, ECHR 2002-I
and 27; and Sandra Janković, cited above, § 44).
. The
Court has previously held, in various contexts, that the concept of private
life includes a person’s physical and psychological integrity. Under Article 8
States have a duty to protect the physical and moral integrity of an individual
from other persons. To that end they are to maintain and apply in practice an
adequate legal framework affording protection against acts of violence by
private individuals (see X and Y v. the Netherlands, cited above, §§ 22 and 23; Costello-Roberts
v. the United Kingdom, 25 March
1993, § 36, Series A no. 247-C; D.P. and J.C.
v. the United Kingdom, no. 38719/97, § 118, 10
October 2002; M.C. v. Bulgaria, cited
above, §§ 150 and 152; Bevacqua and S. v.
Bulgaria, no. 71127/01, § 65, 12
June 2008; and Sandra Janković, cited above, § 45).
As to the present case,
the Court notes that the applicant alleged that the attacker kicked and
hit him on the back and head. The medical documentation
shows that the applicant sustained bruises on the left cheek, on the
left lumbar region and around the spleen. The Court
attaches importance to the fact that the applicant, a thirteen-year old boy at
the time, was attacked by a grown-up man and that it occurred over a trivial
dispute at a school’s playground in presence of other children. The Court
considers that the applicant, owing to his age, may be considered to fall
within the group of “vulnerable individuals” entitled to State protection (see A.
v. the United Kingdom, 23 September 1998, § 22, Reports of
Judgments and Decisions 1998-VI; and Đurđević
v. Croatia, no. 52442/09, § 109, ECHR 2011 (extracts)). The acts of violence such as those alleged by the applicant
require the States to adopt adequate positive measures in the sphere of
criminal-law protection. Where attacks on one’s physical integrity come
from a private individual, the Convention does not necessarily require State-assisted
prosecution against the attacker in order to secure the applicant’s Convention
rights (see Sandra Janković, cited above, §§ 50-51). Where the
domestic law afforded the applicant a possibility to pursue the prosecution of
his attacker, either as a private prosecutor or as the injured party in the
role of a subsidiary prosecutor, and the applicant has availed himself of this
possibility, the Court must examine the effectiveness and the manner in which
such criminal-law mechanism was implemented (see, mutatis mutandis, V.D.
v. Croatia, no. 15526/10, § 84, 8 November 2011, and Butolen v. Slovenia,
no. 41356/08, §§ 69-70, 26 April 2012).
The Court notes that the applicant complained
both to the police and to the State Attorney’s Office that he had been beaten
and threatened by I.Š. He submitted that the physical attack had occurred
without any previous warning and that it had involved kicking, hitting and
slapping. The medical documentation revealed that the applicant sustained
several blows which had caused contusions on his head and body and three
witnesses confirmed, in their statements to the police and before the domestic
court, the applicant’s version of the events.
As to the criminal-law mechanisms provided in
the Croatian legal system, the Court found in the Sandra Janković
case that violent acts committed by private individuals are prohibited in a
number of separate provisions of the Croatian Criminal Code (see § 59 above)
and that the same issue can be addressed under the minor offences legislation
concerning the protection of the public peace and order (see § 62 above).
Furthermore, as to the criminal law sphere, the
Croatian legislation distinguishes between criminal offences to be prosecuted
by the State Attorney’s Office, either of its own motion or upon a private
application, and those to be prosecuted by means of a private prosecution. The
latter category concerns criminal offences of a lesser nature. Thus, prosecution
in respect of the criminal offences of violent behaviour and making threats,
alleged by the applicant, is to be undertaken by the State Attorney’s Office,
of its own motion or by a private application.
The Croatian legal system also envisages the
possibility of the injured party acting as a subsidiary prosecutor. In respect
of criminal offences for which the prosecution is to be undertaken by the State
Attorney’s Office, either of its own motion or upon a private application,
where the Office declines to prosecute on whatever ground, the injured party
may take over the prosecution as a subsidiary prosecutor (see paragraphs 60 and
61). Thus, a requirement of providing criminal law mechanisms in respect of
violent acts by private parties has been satisfied.
However, providing an appropriate legal
framework for protecting the individuals from the violent attacks on their
personal integrity is not sufficient. The Court will next
examine whether or not the impugned regulations and practices, and in
particular the domestic authorities’ compliance with the relevant procedural
rules, as well as the manner in which the criminal-law mechanisms were
implemented in the instant case, were defective to the point of constituting a
violation of the respondent State’s positive obligations under Article 8 of the
Convention (see Sandra Janković, cited above, § 51).
In this respect the Court notes that on the same
date when the alleged incident took place the police conducted an on-site
investigation and interviewed the applicant and the alleged assailant. The
police also instituted further proceedings by lodging a request for the opening
of minor offences proceedings against I.Š. before the Dubrovnik Minor Offences
Court and informed the applicant of all procedural steps taken. After the
Dubrovnik Municipal State Attorney’s Office had become aware of the attack on
the applicant, it also requested that a preliminary investigation be conducted
by the police, providing clear guidelines as to the information that had to be
obtained. As a result of these measures further witnesses were indentified and
interviewed by the police and relevant medical documentation concerning the
applicant was obtained. Following the police report, the Dubrovnik Municipal State
Attorney’s Office lodged an indictment in the Dubrovnik Municipal Court against
I.Š.
However, none of the further steps taken by the domestic
authorities can be seen as effective and sufficiently diligent. Namely, following
the investigation two separate sets of proceedings were instituted before the
domestic courts; the minor offences proceedings instituted by the police and
the criminal proceedings instituted by the State Attorney’s Office, and both
were terminated on the ground that the prosecution had become time-barred.
The Court considers that when proceedings in
respect of allegations of the violent attack against the physical integrity of
an individual have become time-barred, the State must provide highly convincing
and plausible reasons to justify such a result. Otherwise, it is a strong
indication that the proceedings were defective to the point of constituting a
violation of the respondent State’s positive obligations under the Convention
(see, mutatis mutandis, Beganović v. Croatia, no. 46423/06,
§§ 84-88, 25 June 2009; Sandra Janković, cited above, §§ 57 and 58;
and A. v. Croatia, no. 55164/08, § 74, 14
October 2010).
In respect of the criminal proceedings in the
present case, the Court notes at the outset that the Dubrovnik Municipal Court only
held a first hearing two years and six months after the indictment had been
lodged with that court. In that period, no steps had been taken by the Dubrovnik
Municipal Court. The Government did not provide any justification as to why the
hearing was not scheduled earlier. Moreover, the Dubrovnik Municipal State
Attorney’s Office, acting as the prosecution authority in the case, never
requested any information about the course of the proceedings or asked for a
hearing to be scheduled.
Furthermore, the indictment lodged by the
Dubrovnik Municipal State Attorney’s Office against I.Š. on charges of violent
behaviour suggested that the incident in which I.Š. allegedly physically
attacked the applicant took place in the presence of three other individuals, H.K.,
D.D. and D.B.L. The Court also notes that violent behaviour must take place in
public, namely in presence of other people, to constitute the offence of
violent behaviour under Article 331 of the Croatian Criminal Code. Therefore, the
fact that the above-mentioned three witnesses were not called to give evidence
appears incompatible with the requirements of an effective examination of the
applicant’s allegations. However, even though the Deputy State Attorney must
have been aware of the records of the police interviews with these witnesses,
he decided to abandon the further prosecution of I.Š. without making any
reference as to why he did not consider it necessary to call those witnesses
before the court. H.K., D.D. and D.B.L. only gave evidence before the Dubrovnik
Municipal Court two years later, which created an unnecessary delay in the
course of the proceedings.
The Court also notes that the Dubrovnik
Municipal State Attorney’s Office first dismissed the charges against I.Š. in
respect of the offence of violent behaviour and then almost two years later
took over the prosecution from the applicant’s father against I.Š. on charges
of making serious threats. The Deputy State Attorney, in dismissing the charges
of violent behaviour against I.Š., expressly noted that he did not consider
that I.Š.’s actions had constituted any other criminal offence which should be publicly
prosecuted, although he later on took over the prosecution from the applicant’s
father against I.Š. for the same offence. It therefore appears that the
prosecuting authority failed to show the necessary diligence in pursuing the
prosecution, which certainly created additional confusion in the conduct of the
proceedings and unnecessarily delayed their course.
Such conduct on the part of the domestic authorities,
namely the excessive delay in scheduling the first hearing and the lack of
diligence of the prosecution authorities, resulted in the criminal prosecution
against I.Š. becoming time-barred. Thus, all the facts of the case were never
established by a competent court of law. In this connection, the Court notes
that the main purpose of imposing criminal sanctions is to restrain and deter an
offender from causing further harm. However, these aims can hardly be achieved without
having all the facts of the case established by a competent criminal court
(see, mutatis mutandis, Beganović, cited above, § 85).
The Court also notes that the applicant attempted
to remedy the adverse effects of the lack of diligence of the domestic
authorities by taking over the criminal prosecution as a subsidiary prosecutor
and pursuing the case against I.Š. in the competent courts. However, although
the applicant was represented by his father who lacked the necessary legal
knowledge, the domestic authorities declined any attempt to assist the
applicant such as providing him the requested legal aid on the ground that the domestic
law did not provide for legal aid in respect of the private prosecution of the
offences at issue (see paragraph 28).
Moreover, the applicant complained to the State
Attorney’s Office of the fact that the prosecution had been abandoned without
all the witnesses being heard but his request was examined almost two years
later (see paragraphs 27 and 35). Eventually, the Dubrovnik Municipal State
Attorney’s Office took over the prosecution from the applicant and, based on
the facts already known from the beginning of the case, amended the charges
against I.Š. accusing him for the offence of making serious threats. This,
notably after five years in which the proceedings were already pending, lead to
the examination of additional witnesses and a procedurally flawed decision of
the first-instance court (see paragraphs 40 and 44) with the final effect of
the time prescription of the prosecution.
As to the minor offence proceedings, the Court
notes that in two years the Dubrovnik Minor Offences Court only examined I.Š.
and failed to examine any of the witnesses or to take any other action aimed at
obtaining relevant evidence allowing it to examine the case. The Court does not
see any particular reason to justify such slow conduct of the proceedings and the
Government did not provide any explanation in that respect except that the
applicant had failed to appear at a hearing, which cannot in any respect
justify the lack of action over a period of two years which eventually led to
the prosecution becoming time-barred.
In the Court’s view, the above impugned
practices, in the circumstances of the present case leading to the
impossibility of the case being examined, show that the State failed to comply
with its positive obligations under Article 8 of the Convention.
There has accordingly been a violation of
Article 8 of the Convention
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained under Article 6 §§ 1
and 3(c) and (d) of the Convention about the fairness and length of the
criminal proceedings against I.Š. He also cited Article 1 of Protocol No. 12
and Article 4 of Protocol No. 7, without further substantiation.
In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court considers that this part of the application does not
disclose any appearance of a violation of the Convention. It follows that it is
inadmissible under Article 35 § 3 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 20,000 euros (EUR) in
respect of non-pecuniary damage.
The Government considered the applicant’s claim
excessive, unfounded and unsubstantiated, because there was no causal link
between the violations complained of and the applicant’s financial claim.
Having
regard to all the circumstances of the present case, the Court accepts that the
applicant has suffered non-pecuniary damage which cannot be compensated solely
by the finding of a violation. Making its assessment on an equitable basis, the
Court awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus
any tax that may be chargeable to him.
B. Costs and expenses
The applicant did not claim for any costs and
expenses. Accordingly, the Court considers that there is no call to award him
any sum on that account.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint under Article 8 of
the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 8 of the Convention;
3. Holds
(a) that the respondent State is to pay the
applicant, within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the
following amount to be converted into Croatian kunas at the rate applicable on
the date of settlement, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 December
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Isabelle
Berro-Lefčvre
Deputy Registrar President
