FOURTH SECTION
DECISION
Application no. 53155/12
Andrija MARJANOVIĆ
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 8 July 2014 as a Chamber composed of:
Ineta Ziemele, President,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Zdravka Kalaydjieva,
Paul Mahoney,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 15 June 2012,
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
1. The applicant, Mr Andrija Marjanović, is a citizen of Bosnia and Herzegovina, who was born in 1970. He was represented before the Court by Mr M. V. Radović and Mr A. Pašić, lawyers practising in Foča and Sarajevo, respectively.
2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.
A. The circumstances of the case as presented by the applicant
3. The facts of the case, as submitted by the applicant, may be summarised as follows.
4. On 4 February 2005 the applicant killed his mother.
5. On 26 May 2005 the Zenica Cantonal Court found the applicant not guilty by reason of insanity (paranoid schizophrenia) and referred the case to the Kakanj Social Work Centre (“the Social Work Centre”). The judgment took effect on or about 30 June 2005 (the applicant has not indicated the exact date).
6. On 28 July 2005 the Kakanj Social Work Centre provisionally placed the applicant in Zenica Prison Forensic Psychiatric Annex (“the Psychiatric Annex”) as from 31 July 2005.
7. In his application to the Court, the applicant claimed that he was still detained in the Psychiatric Annex on the basis of the administrative decision, despite the fact that the social work centres did not have jurisdiction to order psychiatric detention.
B. The circumstances of the case as presented by the Government
8. The Government disputed the facts as submitted by the applicant as incomplete and misleading. They informed the Court of the following facts.
9. On 17 May 2010 the Social Work Centre initiated proceedings before the Zenica Municipal Court on the necessity of the applicant’s detention.
10. On 15 November 2010 the Zenica Municipal Court established that the applicant’s mental disorder warranted continued detention in the Psychiatric Annex, for a maximum period of one year. The court further held that the applicant would eventually be transferred to the new psychiatric clinic Podromanija in Sokolac, once it was ready and functional.
11. On 4 November 2011, 15 May and 14 November 2012, and 14 May 2013, respectively, the Zenica Municipal Court extended the applicant’s detention. The applicant did not appeal against any of these decisions.
12. The Government submitted a copy of the decision of 15 November 2010 as well as the copies of the subsequent decisions.
13. It would appear that the applicant is still detained in the Psychiatric Annex.
C. Relevant domestic law
14. Under the Criminal Code 2003 of the Federation of Bosnia and Herzegovina (Krivični zakon Federacije Bosne i Hercegovine; Official Gazette of the Federation of Bosnia and Herzegovina, nos. 36/03, 37/03, 21/04, 69/04, 18/05, 42/10 and 42/11), an offender who has been acquitted on the grounds of insanity can be placed in psychiatric detention only by the competent civil court if this is considered necessary for the protection of the offender and/or the public from serious harm. Any such acquittal is therefore reported to the competent social work centre which must initiate the appropriate procedure in which the competent civil court would decide whether to prolong the detention of any such mental health patient (Article 420 of the Criminal Code 2003 and Article 410 § 1 of the Code of Criminal Procedure of the Federation of Bosnia and Herzegovina 2003; Zakon o krivičnom postupku Federacije Bosne i Hercegovine; Official Gazette of the Federation of Bosnia and Herzegovina, nos. 35/03, 37/03, 56/03, 78/04, 28/05, 55/06, 27/07, 53/07, 9/09, 12/10 and 8/13).
COMPLAINT
15. The applicant complained under Article 5 § 1 (e) of the Convention that his detention had been unlawful because it was not ordered “in accordance with a procedure prescribed by law”.
THE LAW
16. The Government argued that the application should be declared inadmissible as an abuse of the right of application, given that the applicant omitted to inform the Court about the decisions of the competent court concerning his detention. The application was therefore knowingly based on untrue facts with a view to deceiving the Court.
17. The applicants’ representatives neither disputed the facts submitted by the Government nor provided any explanation for failure to inform the Court about them.
18. The Court reiterates that the concept of “abuse” within the meaning of Article 35 § 3 of the Convention must be understood to mean any conduct on the part of an applicant that is manifestly contrary to the purpose of the right of individual petition as provided for in the Convention and that impedes the proper functioning of the Court, or the proper conduct of the proceedings before it (see Miroļubovs and Others v. Latvia, no. 798/05, §§ 62 and 65, 15 September 2009). An application is likely to be dismissed on this ground if it has been established that (a) it is knowingly based on untrue facts and false declarations (see, for example, Drijfhout v. the Netherlands (dec.), no. 51721/09, 22 February 2011; Bagheri and Maliki v. the Netherlands (dec.), no. 30164/06, 15 May 2007; and Poznanski and Others v. Germany (dec.), no. 25101/05, 3 July 2007), or that (b) significant information and documents have been deliberately witheld, either where they were known from the outset (see Puusep v. Estonia (dec.), no. 67648/10, 7 January 2014, and Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006) or where new significant developments have occurred during the procedure (see Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013; Tatalović and Dekić v. Serbia, no. 15422/07, 29 May 2012; and Predescu v. Romania, no. 21447/03, §§ 25-27, 2 December 2008).
19. Incomplete and therefore misleading information may amount to an abuse of the right of application, especially if the information in question concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Khvichia and others v. Georgia (dec.), no. 26446/06, 23 June 2009; Predescu, cited above, §§ 25-26; and Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006).
20. Turning to the present case, the Court notes that in his initial application the applicant alleged that his detention had been unlawful because it had been based solely on an administrative decision contrary to the relevant domestic law. It was only after the notice of the application was given to the Government that the Court learned about the proceedings before the Zenica Municipal Court (see paragraphs 9, 10 and 11 above). From the facts disclosed by the Government it transpires that on 15 November 2010, more than two years before the present application was lodged, the Zenica Municipal Court assessed the necessity of the applicant’s detention and held that his mental disorder warranted continued detention in the Psychiatric Annex. The applicant’s detention was, thereafter, regularly reviewed and extended by the Zenica Municipal Court.
21. The Court notes that, insofar as the applicant’s complaint relates to the period before 15 November 2010, it was submitted out of time. Moreover, the applicant’s representatives did not dispute the facts submitted by the Government, but failed to provide any explanation as to why they were omitted in the application and later submissions to the Court. This cannot be interpreted, in the Court’s view, as anything other than a failure to disclose information concerning the very core of the application (see Pirtskhalaishvili v. Georgia (dec.), no. 44328/05, 29 April 2010, and Bekauri v. Georgia (preliminary objection), no. 14102/02, §§ 21-25, 10 April 2012).
22. Having regard to the importance of the information withheld for the proper determination of the present case, the Court finds that such conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention.
23. In view of the above, it is appropriate to reject the application as a whole as an abuse of the right of petition, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy