FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 61059/08
by Anton KAČINARI
against Croatia
The European Court of Human Rights (First Section), sitting on 25 March 2010 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 4 December 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Anton Kačinari, is a Croatian citizen of Albanian origin who was born in 1952 and lives in Zagreb. He was represented before the Court by Mr Zlatko Kušan and Mrs Lovorka Kušan, lawyers practising in Ivanić Grad. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Event of 13 March 1992
On 13 March 1992 the applicant reported to the police that on that same day at about 11 a.m. he had had a fight with a certain P.G. and that P.G. had fired two shots. Several other individuals had joined P.G. and together they had hit and kicked the applicant who, according to the medical documentation submitted, suffered grave injuries such as concussion, a broken nose, lacerations to his head and broken teeth. On 17 March 1992 the police lodged a criminal complaint with the Zagreb State Attorney’s Office.
The Government submitted that on 24 June 1998 the competent State Attorney’s Office had dropped the charges and that the case file had meanwhile been destroyed.
The applicant submitted that he had never been informed of the said decision to drop the charges.
Event of 31 May 2004
On 6 July 2004 the applicant lodged a criminal complaint against K.G. and P.G., alleging that at the beginning of 2004 K.G. had threatened to kill him and that in May 2004 both K.G. and P.G. had threatened to kill him. On 7 July 2004 he lodged a further complaint stating that on 6 July 2004 K.G. had said in front of one M.M. that he would kill the applicant.
On 20 July 2004 the Zagreb State Attorney’s Office ordered the police to collect information in relation to the applicant’s allegations. In their report of 24 October 2004 the police informed the State Attorney’s Office that they had interviewed the applicant and two witnesses. On 7 March 2005 the State Attorney’s Office ordered the police to interview P.G. and K.G. On 9 June 2005 the police submitted a report and enclosed the record of the interviews with the alleged perpetrators.
On 13 July 2005 the State Attorney’s Office requested an investigating judge of the Zagreb County Court (istražni sudac Županijskog suda u Zagrebu) to hear evidence from the perpetrators. The investigating judge heard their evidence on 27 September and 17 October 2005 respectively.
On 28 November 2005 the State Attorney’s Office indicted P.G. and K.G. in the Zagreb Municipal Court (Općinski sud u Zagrebu) on charges of uttering threats against the applicant. Hearings before that court were held on 19 November 2007 and 7 January, 11 February, 2 April and 20 May 2008. The court heard evidence from five witnesses and the defendants and on the last-mentioned date gave a judgment acquitting K.G. for lack of evidence. P.G. was found guilty of making death threats to the applicant and was given a suspended sentence of three months’ imprisonment with a probation period of two years. The State Attorney lodged an appeal which was dismissed by the Zagreb County Court on 3 March 2009.
Event of 25 July 2005
On 25 July 2005 the applicant lodged a criminal complaint against B.Š., alleging that at around 6 p.m. on that same day B.Š. had threatened to kill him, telling him that he was a “newcomer” and a “shiptar”, a derogatory term for persons of Albanian origin. He had also warned the applicant that he had “warrior experience” and “was in the war”.
On 12 October 2005 the Zagreb State Attorney’s Office requested an investigating judge of the Zagreb County Court to hear evidence from the defendant and the applicant. The investigating judge heard their evidence on 27 January and 20 March 2006 respectively.
On 14 April 2006 the Zagreb State Attorney’s Office indicted B.Š. in the Klanjec Municipal Court on the charge of making death threats to the applicant. The factual basis of the offence as described in the indictment reads:
“... that on 25 July 2005 in Zagreb, ..., with the intention of scaring him, [B.Š.] told Anton Kačinari that he had “war experience”, that he had participated in the Homeland War, that he knew how to kill and that he was going to kill him and that he had no rights as an Albanian because this was Croatia and he was a Croat, which caused Anton Kačinari to fear for his personal safety”
After the indictment, the Zabok State Attorney’s Office took over the prosecution. The Klanjec Municipal Court held hearings on 6 June, 4 July, 12 September, 15 October and 14 November 2007 and on 19 February 2008. It heard evidence from seven witnesses, the defendant and the applicant.
On 5 May 2008 the Zabok State Attorney’s Office informed the Municipal Court that it no longer wished to continue the prosecution of B.Š. on the grounds that the evidence of the witnesses heard had not shown that B.Š. had seriously threatened to kill the applicant. Accordingly, on 8 May 2008 the Klanjec Municipal Court terminated the proceedings because the State Attorney’s Office had dropped the charges. The applicant was informed that he could take over the prosecution within eight days of the date on which the decision was served on him. He did not pursue the prosecution nor did he appeal against the decision to terminate the proceedings.
Event of 8 March 2007
On 11 June 2007 the applicant lodged a criminal complaint against P.G., alleging that on 8 March 2007 at about 10 p.m. he had met P.G. in the street. P.G. had made a gesture as if he were going to pull a gun on the applicant, saying that he was going to kill him.
On 21 June 2007 the Zagreb State Attorney’s Office ordered the police to collect information about the applicant’s allegations. The police submitted their report on 2 August 2007.
On 23 August 2007 the Zagreb State Attorney’s office indicted P.G. in the Zagreb Municipal Court on the charge of threatening behaviour against the applicant. These proceedings are currently pending.
B. Relevant domestic law
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 a qualified prosecutor only. ...
(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences to 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 as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.”
COMPLAINTS
The applicant complained under Articles 2, 3 and 8 of the Convention that the competent State authorities had failed to comply with their positive obligations to protect his life and his right to respect for his private life.
He further complained under Article 5 of the Convention that his personal safety had been put at risk by the acts of these private individuals.
He also complained under Article 13 of the Convention that he had no effective remedy in respect of his complaints under Article 2, 3, 8 and 14.
Lastly, he complained under Article 14 of the Convention that B.Š.’s threats against him had been motivated by ethnic racial hatred, but had not been prosecuted as a hate crime.
THE LAW
The applicant complained that the competent State authorities had failed to comply with their positive obligations to protect his life and his right to respect for his private life; that his personal safety had been put at risk by the acts of private individuals; and that he had no effective remedy in respect of the above complaints.
He relied on Articles 2, 3, 5, 8, 13 and 14 of the Convention, the relevant part of which reads:
Article 2
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
...”
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 5
“1. Everyone has the right to liberty and security of person ...”
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
In addition, in respect of the event of 25 July 2005, the applicant also complained that B.Š.’s threats, although clearly motivated by ethnic racial hatred, had not been prosecuted as a hate crime. He relied on Article 14 of the Convention, which reads:
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The parties’ arguments
The applicant argued that the incidence of violence against him required the State to take adequate positive measures and to investigate and prosecute the perpetrators. He stressed that the events of 13 March 1992, 31 May 2004 and 8 March 2007 were connected because they all concerned P.G. and that therefore they had to be regarded as a whole.
In connection with the incident of 25 July 2005 the applicant argued that the State authorities had failed to prosecute it as a hate crime although it was clear that the act of violence in issue had been motivated by ethnic hatred of the applicant.
The Government argued that all complaints concerning the event of 13 March 1992 were incompatible ratione temporis since the Convention had not entered into force in respect of Croatia until 5 November 1997. In any event, they were out on six months because the final step in the proceedings in issue had been taken in 1998.
As regards the event of 31 May 2004 the Government argued that the applicant had not exhausted domestic remedies because he could have sought damages in the civil proceedings against P.G.
As regards the event of 25 July 2005, the Government argued that the applicant had failed to exhaust domestic remedies since he did not take over the prosecution of the alleged perpetrators when the State Attorney’s Office had dropped the charges.
As regards the event of 8 March 2007, the Government argued that that part of the application was premature because the proceedings against the alleged perpetrator were still pending.
As regards the merits of the application, the Government argued that Articles 2, 3 and 8 did not apply to the circumstances of the present case. In any case, the relevant domestic authorities had duly investigated all of the applicant’s allegations and in some cases even conducted the relevant criminal proceedings. The State’s procedural obligations under Articles 2, 3 and 8 of the Convention were not related to the outcome but to the means and they had been fully satisfied in the present case.
The Court’s assessment
Event of 13 March 1992
The Court notes the Government’s argument that the criminal complaint in connection with the event in question was dismissed by the State Attorney’s Office on 24 June 1998, when it also dismissed the applicant’s argument that he had never received a decision to that effect.
The Court further notes that the Government did not submit a copy of the said decision explaining that the case file had meanwhile been destroyed.
The Court reiterates that the object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continuously open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, amongst other authorities, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).
As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Nor can Article 35 § 1 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. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period as the date when the applicant first became, or ought to have become aware, of those circumstances (see Paul and Aubrey Edwards v. the United Kingdom (dec.), no. 46477/99, 4 June 2001).
The Court reiterates that where there has been an action allegedly in contravention of Articles 2 or 3 of the Convention, the victim is expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge his or her application with due expedition once he or she is, or should have become, aware of the lack of any effective criminal investigation (see, mutatis mutandis, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, ECHR 2009‑...).
As to the present case, the Court notes that it is undisputed between the parties that since 1998 no steps have been taken in respect of the applicant’s criminal complaint concerning the event of 13 March 1992. In the Court’s view, the applicant should have been aware of that fact and lodged his application so as to comply with the six-month time-limit.
However, he lodged his application with the Court on 4 December 2008; about ten years after the competent national authorities had taken the last step in connection with the criminal complaint in issue.
As to the applicant’s argument that all events concerning P.G. had to be considered as a whole, the Court notes that the incident occurred in 1992 and that the other incidents the applicant is complaining about are so far removed in time that they cannot be seen as a continuing situation.
It follows that this part of the application has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
Event of 31 May 2004
The Court does not need to address the question of whether the facts of the case fall within the scope of any of the invoked Articles of the Convention, namely Articles 2, 3 and 8, since this part of the application is, in any event, inadmissible for the following reasons.
Assuming that a positive obligation to investigate the applicant’s allegations of death threats did arise in the circumstances of the present case, either under Article 2, 3 or 8 of the Convention, the Court reiterates that these positive obligations may require States to put in place effective criminal-law provisions to deter the commission of offences against lives and personal integrity, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see, mutatis mutandis, A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998‑VI; and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 96, ECHR 2005-VII). This requirement also extends to ill-treatment administered by private individuals (see Šečić v. Croatia, no. 40116/02, § 53, ECHR 2007‑VI). In order for a State to be held responsible, it must be shown that the domestic legal system, and in particular the criminal law applicable in the circumstances of the case, fails to provide practical and effective protection of the rights guaranteed by Article 3 (see X and Y v. the Netherlands, 26 March 1985, § 30, Series A no. 91; and A. v. the United Kingdom, cited above, opinion of the Commission, § 48).
As regards the event in question, the Court notes that the competent authorities did investigate the applicant’s allegations and indeed indicted the two alleged perpetrators. In the ensuing criminal proceedings before a court of law, evidence was heard from several witnesses, as well as from the defendants and the applicant. The Zagreb Municipal Court found that there was insufficient evidence in respect of one of the perpetrators. In respect of the other, it found him guilty as charged and imposed a suspended prison sentence on him.
In the Court’s view, the above shows that the relevant national bodies did comply with the State’s positive obligations under the invoked Articles and adequately applied criminal-law mechanisms, which appear appropriate. The fact that one of the perpetrators was acquitted cannot, in the circumstances of the present case, in any way undermine the conclusion that the State authorities did comply with their positive obligations under the Convention.
Thus, 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 finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
Event of 25 July 2005
The Court notes that on 8 May 2008 the Klanjec Municipal Court terminated the proceedings because the State Attorney’s Office had dropped the charges and that the applicant was informed that he could take over the prosecution within eight days of the date on which the decision was served on him. He did not pursue the prosecution nor did he appeal against the decision to terminate the proceedings.
The Court further notes that the applicant argued that, while it is true that under the relevant domestic law he could have continued the prosecution in respect of the charges of death threats, he could not have continued the prosecution in respect of his allegations relevant to his complaint under Article 14 of the Convention because the national authorities had completely ignored his allegations that B.Š. had addressed him in a derogatory manner, in particular referring to his Albanian origin.
The Court notes firstly that the applicant failed to pursue the criminal prosecution after the State Attorney had dropped the charges on 8 May 2008, although he had such an option under the relevant provisions of the Code of Criminal Procedure.
As regards the applicant’s allegations relevant to his Article 14 complaints, these were not encompassed in the indictment of 14 April 2006. However, the applicant also failed to pursue the prosecution in this respect.
It follows that any complaints related to the event of 25 July 2005 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
Event of 8 March 2007
The Court notes that, assuming that the applicant’s allegations might raise an issue under the Convention, the alleged perpetrator was indicted by the competent State Attorney’s Office before a court of law and that the ensuing criminal proceedings are still pending.
It follows that this complaint is premature and therefore must be rejected under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy