CASE OF REMETIN v. CROATIA

FIRST SECTION

CASE OF REMETIN v. CROATIA

(Application no. 29525/10)

JUDGMENT

STRASBOURG 

11 December 2012

FINAL

11/03/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Remetin v. Croatia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Isabelle Berro-Lefèvre, 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

1. 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.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. 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).

4. 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

5. The applicant was born in 1989 and lives in Dubrovnik.

A. Background to the case

6. 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.

7. 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.

8. The police established the identity of the man as I.Š.

9. 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.

10. 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.

11. 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.

12. 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.

13. Hearings were held on 14 and 16 June 2004.

14. 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.

15. 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.

16. 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.

17. 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.”

18. 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 ...”

19. 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.

20. 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.

21. 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.”

22. 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.

23. 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.”

24. 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.

25. 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).

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.”

32. 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.

33. 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.

34. 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.

35. 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.

36. 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.

37. On 8 July 2008 the applicant’s father submitted an application to the Dubrovnik Municipal Court to expedite the proceedings.

38. 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.”

39. 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.

40. 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.

41. 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.

42. 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.

43. 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.

44. 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.

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.

50. 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.

51. 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

52. 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.

53. 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.

54. 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.

55. 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.

56. 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

58. 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

59. 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

60. 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.”

61. 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

62. 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

63. 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

64. 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.”

65. 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 ...”

66. 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.

67. 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

68. 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

69. 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.

70. 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).

71. The applicant argued that he had exhausted all available legal remedies.

(b) The Court’s assessment

72. 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).

73. 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.

74. 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.

75. 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.

76. 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.

77. 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

78. 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.

79. 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

80. 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).

81. 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).

82. 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)).

83. 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).

84. 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

85. 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

86. 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.

87. 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.

88. 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

89. 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).

90. 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).

91. 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).

92. 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.

93. 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).

94. 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.

95. 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.

96. 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).

97. 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.

98. 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.

99. 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).

100. 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.

101. 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.

102. 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.

103. 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).

104. 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).

105. 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.

106. 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.

107. 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.

108. There has accordingly been a violation of Article 8 of the Convention

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

109. 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.

110. 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

111. 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

112. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.

113. 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.

114. 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

115. 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

116. 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 WampachIsabelle Berro-Lefèvre
Deputy RegistrarPresident


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