Information Note on the Court’s case-law No. 120
June 2009
Beganović v. Croatia - 46423/06
Judgment 25.6.2009 [Section I]
Article 3
Positive obligations
Inactivity of domestic authorities leading to criminal proceedings against applicant’s attackers becoming time-barred: violation
Facts: In December 1999 the applicant, a Croatian national of Roma origin, along with two other friends, physically attacked three minors, who also belonged to the same group of friends. Some months later, on 23 April 2000, a group comprising the victims of the previous attack and four friends, confronted and physically attacked the applicant. During the fight, the applicant pulled out a knife and twice stabbed one of his assailants. Subsequently, another assailant, B.B., hit the applicant on the head with a wooden plank. In April and June 2000 the police interviewed the applicant’s assailants, who submitted that they had decided to carry out a revenge attack against the applicant. The police also interviewed the applicant and two neutral witnesses. In June 2000 the applicant lodged a criminal complaint with the State Attorney’s Office against six identified individuals and a person unknown, alleging that they had assaulted him on 23 April 2000 causing him severe bodily injuries. A medical report was submitted to the police by a hospital in Zagreb where the applicant had been examined after the incident and which described his injuries as grievous – he had been diagnosed with concussion and contusions to the head and body, and had remained in hospital for five days. The police then lodged a criminal complaint against the assailants with the State Attorney’s Office, which decided, in July 2001 and in September 2002 respectively, not to institute criminal proceedings against them as the applicant’s injuries were not grievous and could only have given rise to private prosecution by the victim. The applicant then brought private prosecutions against his assailants. The proceedings against one of them, B.B., were later dismissed by another state attorney who found that domestic legislation required B.B., as a minor, to be prosecuted by the State after all. Criminal proceedings against B.B. were ultimately brought before a juvenile court in February 2002, only to be discontinued in December 2005 on the ground that the prosecution of the offence had become time-barred. The proceedings against the remaining assailants were ultimately discontinued in May 2006 as the court found that the prosecution of the offence had also become time-barred almost two years earlier.
Law: Article 3 – Even though the police had promptly interviewed the suspected assailants, the applicant and other witnesses, obtained a medical report and filed a criminal complaint with the competent State Attorney’s Office, the further steps taken by the prosecuting authorities and the courts could hardly be considered to have satisfied the requirements of an effective criminal-law mechanism for the purposes of Article 3 of the Convention. While the choice of means to secure compliance with that provision in the sphere of relations between individuals fell within the State’s margin of appreciation, the Court observed that under the relevant domestic law the prosecution of minors always had to be brought by the State. However, in the applicant’s case, only B.B. had been prosecuted by the competent State Attorney’s Office, and then only after it had initially refused to prosecute on the erroneous ground that the act could only be prosecuted privately. When the court did finally start criminal proceedings against B.B. – almost two years after the incident – two significant periods of inactivity then followed until the prosecution of the offence eventually become time-barred in 2004. As regards the proceedings against the remaining six assailants, the initial error whereby the applicant’s complaint had been declared inadmissible had never been rectified, despite the fact that four of them were minors so that the proceedings against them should have been instituted by the competent State Attorney’s Office. Even after the applicant had lodged a private subsidiary indictment against them, the prosecution of the offence had already become time-barred by the time the first hearing was held. In such circumstances, as the proceedings were discontinued as a result of the inactivity of the State authorities, the Court could not accept that the purpose of affording effective protection against ill-treatment had been achieved. The outcome of the criminal proceedings in the applicant’s case could therefore not be said to have had a sufficiently deterrent effect on the individuals concerned, or to have been capable of ensuring the effective prevention of unlawful acts such as those complained of by the applicant.
Conclusion: violation (unanimously).
Article 14 – The applicant and his assailants had belonged to the same group of friends until the incident of December 1999. Neither in his police interview nor in his evidence before the first-instance court had the applicant indicated that any of his assailants had made reference to his Roma origin. The only one of the applicant’s assailants to have mentioned the applicant’s ethnic origin did not in any way indicate that it had played any role in the attack on him. In sum, there was no evidence in the applicant’s case that the attack on him had been racially motivated.
Conclusion: no violation (unanimously).
Article 41 – EUR 1,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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