FIRST SECTION
DECISION
Application no. 67499/12
Milka BEKIĆ and others against Croatia
and 3 other applications
(see list appended)
The European Court of Human Rights (First Section), sitting on 30 September 2014 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above applications lodged on 28 September, 5 November and 18 December 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 22 August 1991 Dragan Bekić, Nenad Pajić, Miland Kladar and Radovan Kragulj, the applicants’ respective close relatives, were killed.
5. On 12 June 2006 the applicants’ legal representative lodged a criminal complaint with the Sisak County State Attorney’s Office against I.K., V.C., V.K., and M.Š. on charges of war crimes against the civilian population, which concerned the killing of fifteen individuals, including the applicants’ close relatives mentioned in paragraph 4 above.
6. The Sisak County State Attorney’s Office concluded that the applicants’ relatives had been killed in combat between paramilitary groups of the so-called “Serbian Autonomous Region of Krajina” and the Croatian Army or as collateral victims of that combat, so on 11 December 2006 it dismissed the criminal complaint.
7. The applicants took over the prosecution, and on 27 December 2006 lodged a request for an investigation with the Sisak County Court. On 29 January 2007 the court invited the applicants to amend their request to satisfy the requirements prescribed under the Code of Criminal Procedure. The applicants did not reply, and on 23 April 2007 the court declared the request inadmissible. This decision became final on 9 May 2007.
B. Relevant domestic law
8. The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997) read as follows:
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) Exceptionally, in respect of certain criminal offences, it may be prescribed by law that criminal proceedings shall be instituted by private prosecution or that the State Attorney’s Office shall institute criminal proceedings by [private] application.”
9. 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 as follows:
Article 2
“(1) Criminal proceedings shall be instituted and conducted at the request of an authorised prosecutor only.
(2) In cases involving criminal offences subject to public prosecution, the authorised prosecutor shall be the State Attorney, and in cases involving criminal offences to be prosecuted privately, the authorised prosecutor shall be a private prosecutor.
(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there exists a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution, and there are no legal impediments to the prosecution of that person.
...
(6) Where the State Attorney finds no grounds to institute or conduct criminal proceedings, the injured party acting as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.”
Articles 47 to 61 regulate the rights and duties of private prosecutors and injured parties acting as subsidiary prosecutors. The Criminal Code distinguishes between these two roles. A private prosecutor (privatni tužitelj) is the injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (offences of a lesser degree). An injured party acting as a subsidiary prosecutor (oštećeni kao tužitelj) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecution authorities have, for whatever reason, decided not to prosecute.
Article 48
“(1) Requests to prosecute shall be lodged with the competent State Attorney’s Office and private prosecutions with the competent court.
(2) Where the injured party has lodged a criminal complaint ... it shall be considered that he or she has also thereby lodged a request to prosecute.
(3) Where the injured party has lodged a criminal complaint or a request to prosecute, but the [competent authorities] establish that the criminal offence in question should be prosecuted by private prosecution, the criminal complaint or request to prosecute shall be treated as a timely private prosecution if it has been submitted within the time-limit prescribed for [bringing] a private prosecution...”
Pursuant to Article 55 § 1, the State Attorney is under a duty to inform the injured party within eight days of a decision not to prosecute and of the party’s right to take over the proceedings, as well as to provide instructions to that party regarding the steps to be taken.
Article 71
“(1) Private prosecutions, bills of indictment, requests to prosecute, legal remedies and other statements and information shall be submitted in writing unless otherwise provided by law.
(2) The submissions referred to in paragraph 1 shall be comprehensible and contain the necessary information for the authorities to act upon them.
(3) Unless otherwise provided in this Act, the court conducting the proceedings shall invite a person who has made submissions which do not contain the necessary information or are incomprehensible to supplement them. Where the submissions have not been amended as required, the court shall declare them inadmissible.
(4) In its invitation to amend the submissions, [the court conducting the proceedings] shall warn the person concerned about the consequences of not complying with the instructions.”
Article 172
“(1) Citizens shall report criminal offences subject to public prosecution.
...”
Article 173
“(1) A [criminal] complaint shall be lodged with the competent State Attorney’s [Office] in writing or orally.
...”
Article 188 governs, inter alia, the required contents of a request for an investigation, namely details of the person in respect of whom the request is being submitted, a description and the legal classification of the relevant offence, the circumstances confirming there exists a reasonable suspicion that the person concerned has committed the offence, and any existing evidence.
Article 205 § 1 allows a private prosecutor and the injured party acting as a subsidiary prosecutor to lodge with an investigating judge of a competent court a request for prosecution and other submissions.
COMPLAINT
10. The applicants complained under Article 2 of the Convention that the criminal law mechanisms applied in the cases concerning the killing of their close relatives had not met the standards of the procedural aspect of Article 2 of the Convention.
THE LAW
11. The applicants argued that there had been no effective investigation into the killing of their close relatives.
12. The Government submitted that the final decision as regards the investigation into the killing of the applicants’ relatives had been taken on 23 April 2007, and therefore the present applications had been lodged with the court outside the six-month time-limit. They further argued that the relevant domestic authorities had conducted an effective investigation, and concluded that the applicants’ relatives had been killed in combat or had been collateral victims of that combat.
13. The Court notes that the applicants’ legal representative lodged a criminal complaint against the alleged perpetrators on 12 June 2006. The final decision in that respect was adopted on 23 April 2007, when the Sisak County Court declared the request inadmissible. Since there was no appeal against that decision, it became final on 9 May 2007. However, the applicants only lodged their applications with the Court on 28 September, 5 November and 18 December 2012.
14. It follows that the applications have been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident
Appendix
No
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Represented by
67499/12
28/09/2012
Milka BEKIĆ
02/08/1955
Sisak
Duško BEKIĆ
18/11/1982
Sisak
Dunja BEKIĆ
23/12/1983
Sisak
Danijel BEKIĆ
06/03/1988
Sisak
Luka ŠUŠAK
67522/12
28/09/2012
Radojka PAJIĆ
02/02/1960
Barajevo
Damir PAJIĆ
17/10/1978
Barajevo
Jovica PAJIĆ
20/01/1982
Barajevo
Luka ŠUŠAK
74387/12
05/11/2012
Dragica KLADAR
02/03/1942
Blinjski Kut
Luka ŠUŠAK
3466/13
18/12/2012
Mara KRAGULJ
15/10/1955
Čačak
Milan KRAGULJ
23/06/1974
Čačak
Dragan KRAGULJ
05/12/1984
Čačak
Milena KRAGULJ
15/06/1976
Blinjski Put
Luka ŠUŠAK
Full & Egal Universal Law Academy