THIRD SECTION
DECISION
Application no. 47040/07
Anđelka BISTROVIĆ-NASTIĆ
against Serbia
The European Court of Human Rights (Third Section), sitting on 11 September 2018 as a Chamber composed of:
Vincent A. De Gaetano, President,
Branko Lubarda,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Georgios A. Serghides,
Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 18 October 2007,
Having regard to the observations submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Anđelka Bistrović-Nastić, is a Serbian citizen, who was born in 1947 and lives in Croatia. She was represented before the Court by Ms V. Kočić-Mitaček, a lawyer practising in Belgrade.
2. The Serbian Government (“the Government”) were represented by their Agent, Ms N. Plavšić.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant and her husband, both wheelchair users, sold their flat in Belgrade in 2001 and moved in with M.P.-V. and Č.P., another married couple. They handed over the money thus received (67,000 deutschmarks (DEM)) to M.P.-V. and Č.P., who were supposed to make the ground floor of their own house accessible to wheelchair users and to cater for the applicant and her husband’s needs. Although a contract to that effect was never concluded, M.P.-V. and Č.P. kept all the money. The applicant’s husband died in 2002. She then moved to her parent’s house in Croatia.
5. On 2 September 2002 the applicant reported M.P.-V. and Č.P. to the police.
6. On 22 May 2003 the public prosecutor filed an indictment against the couple, accusing them of fraud.
7. On 5 September 2005 the applicant was summoned as a witness in the context of criminal proceedings against M.P.-V. and Č.P. That hearing was held on the ground floor of the court building. The applicant did not require assistance in order to attend it. At the same hearing, she filed a civil claim in the amount of DEM 67,000.
8. Further hearings in this case were held on 2 October, 20 November and 28 December 2006. Although the applicant’s presence at those hearings was not mandatory, she was entitled to attend them and indeed attended all of them, together with her lawyer. Since the hearings were held on an upper floor, court security officers had to carry her to the courtroom. The applicant also maintained that, occasionally, she had to pay someone to carry her, but she failed to provide any details in that regard.
9. On 28 December 2006 the first-instance court convicted M.P.-V. and Č.P. of fraud. They were given conditional prison sentences. The court held that the accused had been supposed to return DEM 10,000 to the applicant and her husband and, with the remaining DEM 57,000, to make the ground floor of their house accessible to wheelchair users and to cater for the applicant and her husband’s needs. Therefore, it ordered the accused to pay the applicant the equivalent of DEM 10,000 in Serbian dinars and instructed the applicant to pursue the remainder of her civil claim in the civil courts.
10. On 18 April 2007 the second-instance court found that the time-limit for criminal prosecution had expired on 1 March 2007 (namely, six years after the alleged fraud had been committed) and dismissed the charges. No hearing was held in the appeal proceedings.
11. On 26 October 2007 the applicant was awarded approximately 2,500 euros (EUR) in respect of her costs and expenses for the participation at the hearing of 5 September 2005 to which she had been summoned as a witness (when assessing that amount the court took into account her disability and awarded her a higher amount than to able-bodied witnesses).
12. Meanwhile, the applicant instituted civil proceedings. In November 2010 the civil court awarded her EUR 33,500, default interest from 2001, and legal costs. The judgment became final on 4 April 2013. It is not known whether that judgment has been enforced or not.
B. Relevant domestic law and practice
13. The Code of Criminal Procedure 2001 (Zakonik o krivičnom postupku, Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 122/08, 20/09, 72/09, 76/10) was in force until 2013. The victims of criminal offences were entitled to be notified of all hearings held in the case and to actively participate in those hearings in person or through a lawyer (Articles 285 and 60 of the Code). Unless summoned as witnesses, their presence was not required; however, if the public prosecutor decided to drop the charges at a hearing at which a duly notified victim failed to appear or appoint a lawyer, he or she would thus lose the right to start a subsidiary prosecution (see Article 62 of the Code). A victim was also entitled to file a civil claim within the context of criminal proceedings (see Article 201 of the Code). If so, the criminal court could accept the claim or instruct the victim to pursue civil proceedings; it could not reject the claim (see Article 206 of the Code). In accordance with Article 364 § 4 of the Code, victims were not entitled to appeal against decisions regarding their civil claims or any other aspect of a criminal case, except for decisions regarding their own costs and expenses.
14. The Disability Discrimination Act 2006 (Zakon o sprečavanju diskriminacije osoba sa invaliditetom, Official Gazette of the Republic of Serbia nos. 33/06 and 13/16) entered in force on 25 April 2006. It prohibits all discrimination on the basis of disability (sections 2-4 of the Act). Section 13 of the Act guarantees access, without discrimination, to all facilities and services open or provided to the public. Furthermore, section 33 of the Act provides that all local authorities must take appropriate measures to ensure to people with disabilities access to buildings (section 33 entered into force on 1 January 2007). In accordance with sections 157, 199 and 200 of the Obligations Act 1978 (Zakon o obligacionim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85, 45/89 and 57/89 and Official Gazette of the Federal Republic of Yugoslavia no. 31/93) taken together with sections 39-45 of the Disability Discrimination Act 2006, a person claiming to be the victim of discrimination may seek damages and/or an injunction in the civil courts in accordance with the general law of tort (see, for instance, judgment Rev. 229/04 of the Supreme Court of 21 April 2004, upholding an injunction of non-repetition and public apology in a case of discrimination on the basis of race; judgment Rev. 3602/10 of the Supreme Court of Cassation of 16 December 2010, upholding an injunction of non-repetition and an award of damages in a case of discrimination on the basis of disability; and judgment Rev. 66/12 of the Supreme Court of Cassation of 2 February 2012, upholding an award of damages in a case of discrimination on the basis of disability). Pursuant to section 172 § 1 of the Obligations Act, all legal persons are liable for the torts committed vis-à-vis third parties by their organs in the course of, or in connection with, the exercise of their functions. This includes State liability for the conduct of its courts (see, for instance, judgment Rev. 6203/02 of the Supreme Court of 10 November 2002).
15. The Enforcement Procedure Act 2004 (Zakon o izvršnom postupku, Official Gazette of the Republic of Serbia no. 125/04) was in force at the relevant time (from 22 February 2005 until 17 September 2011). It provided for the possibility of seeking an interim injunction before the introduction of civil proceedings or pending civil proceedings under certain conditions (sections 291-303 of the Act). Pursuant to section 303 of the Act, the competent court had the power to order any necessary measures.
C. Relevant international law
16. The Convention on the Rights of Persons with Disabilities entered into force on 3 May 2008 and was ratified by Serbia on 31 July 2009.
COMPLAINTS
17. The applicant complained under Articles 6 and 14 of the Convention about physical access to the building housing the criminal court which had dealt with her civil claim. The Court communicated that complaint to the Government also under Article 8 of the Convention. The applicant further complained under Article 6 about the length of the criminal proceedings set out above and under Article 13 about the effectiveness of domestic remedies for her complaint in that regard.
THE LAW
A. As to the accessibility of the building housing the criminal court
1. The parties’ submissions
18. The Government maintained that the applicant had failed to exhaust all effective domestic remedies in this connection. Notably, she had failed to bring a civil action in accordance with the general law of tort (see paragraph 14 above). The Government submitted examples of the relevant case-law of domestic courts (ibid.).
19. The applicant raised doubts as to the effectiveness of that domestic remedy. In particular, she argued that a civil lawsuit did not offer reasonable prospects of success given the embryonic nature of the domestic case-law in this area at the relevant time.
2. The Court’s assessment
20. The general principles concerning the rule of exhaustion of domestic remedies were restated in Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). In particular, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. Those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success. However, the existence of mere doubts as to the prospects of success of a remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (ibid.).
21. In the present case, the Court notes that the hearing of 5 September 2005 was held on the ground floor and the applicant therefore did not require assistance in order to attend it (see paragraph 7 above). Her complaint about access to the court building concerned, accordingly, only the hearings held on 2 October, 20 November and 28 December 2006. Although the applicant was in fact able to participate in all those hearings, she complained that those hearings should have also been held on the ground floor so as to allow her to attend them without being carried by anyone (see paragraph 8 above).
22. As indicated in paragraph 14 above, domestic law guarantees access, without discrimination, to all facilities and services open or provided to the public and provides for a remedy in that regard. A person claiming to be the victim of discrimination may seek damages and/or an injunction in the civil courts in accordance with the general law of tort. The Government provided examples of similar cases in which that remedy had been successfully used.
23. As an excuse for not using the remedy in issue, the applicant claimed that the remedy had been rarely used at the relevant time. However, as noted above, the existence of mere doubts as to the prospects of success of a remedy which is not obviously futile is not a valid reason for failing to use it (see paragraph 20 above). Indeed, by applying to the appropriate court, the applicant would have created an opportunity for the development of case-law on this subject, which would potentially have been beneficial to anyone else in a similar or comparable situation (see Gherghina v. Romania [GC] (dec.), no. 42219/07, § 106, 9 July 2015). Moreover, the Court has already held that the remedy in question was effective in respect of discrimination complaints (see Vučković and Others, cited above, § 78) and of complaints under Article 8 of the Convention (see, in this connection, Hajnal v. Serbia, no. 36937/06, § 142, 19 June 2012; Kostić v. Serbia (dec.), no. 40410/07, § 60, 17 September 2013; and Lakatoš and Others v. Serbia, no. 3363/08, § 111, 7 January 2014).
24. As regards the applicant’s argument that the remedy in question was inadequate in the particular circumstances of her case since the time-limit for criminal prosecution was about to expire and she therefore needed to act quickly (see paragraph 10 above), it is observed that domestic law provided for the possibility of seeking an interim injunction before the introduction of civil proceedings or pending civil proceedings under certain conditions (see paragraph 15 above).
25. Lastly, there do not appear to be any other circumstances capable of exempting the applicant from the obligation to exhaust domestic remedies (see, in this regard, Gherghina, cited above, §§ 113-14).
26. This complaint must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. As to the length of the criminal proceedings
27. The Court did not communicate this complaint to the Government. The parties, accordingly, did not submit any observations in this connection.
28. The Court notes that the wording of Article 6 (“against him”) makes it clear that in criminal cases its guarantees protect the person who faces a criminal charge (see AGOSI v. the United Kingdom, 24 October 1986, § 65, Series A no. 108). The criminal limb of Article 6 is thus not applicable in this case. That being said, the Court has held that the civil limb of Article 6 applies to criminal proceedings involving civil-party complaints from the moment the complainant is joined as a civil party (see Perez v. France [GC], no. 47287/99, § 66, ECHR 2004-I, and Gorou v. Greece (no. 2) [GC], no. 12686/03, § 25, 20 March 2009).
29. The applicant filed her civil-party claim on 5 September 2005 and the proceedings lasted until 18 April 2007 (see paragraphs 7 and 10 above). The period under consideration in this case is thus less than two years. During that period two judgments were given, at two levels of jurisdiction. Having regard to its case-law on the subject (see, among other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII), the Court considers that in the instant case the length of the proceedings was not excessive.
30. This complaint must therefore be rejected under Article 35 §§ 3 (a) and 4 of the Convention as manifestly ill-founded.
C. As to the right to an effective remedy for length of proceedings
31. Just like the complaint about the length of the criminal proceedings, this complaint was not communicated to the Government either. The parties thus did not submit any observations in this connection.
32. The Court has held on many occasions that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI). The Court has found that the applicant’s length of proceedings complaint is manifestly ill-founded (see paragraph 30 above). Accordingly, it cannot be regarded as “arguable” for the purposes of Article 13 (see, among many other authorities, Zagrebačka banka d.d. v. Croatia, no. 39544/05, § 283, 12 December 2013).
33. Consequently, this part of the application must also be rejected under Article 35 §§ 3 (a) and 4 of the Convention as manifestly ill-founded.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 4 October 2018.
Stephen PhillipsVincent A. De Gaetano
RegistrarPresident
Full & Egal Universal Law Academy