FOURTH SECTION
DECISION
Application no. 31989/06
S.V. and S.V.
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 10 April 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Ljiljana Mijović, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 25 May 2006,
Having regard to the observations submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Ms S.V. (“the first applicant”) and Ms S.V. (“the second applicant”), citizens of Bosnia and Herzegovina, are sisters who were born in 1977 and 1978 respectively and live in Sarajevo. They were represented by their father, following leave granted by the President of the Fourth Section of the Court. The applicants were also granted anonymity. The Bosnian-Herzegovinian Government (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Both applicants suffer from mild learning disabilities.
4. In June 1998 they started working as waitresses in a restaurant in Kladanj which was owned by N.H. It would appear that the second applicant returned to her parents’ home in Sarajevo after fifteen days, while the first applicant continued working at the restaurant until 12 July 1998, when she also returned to Sarajevo.
5. On 13 July 1998 the applicants’ father called an ambulance to examine the first applicant, as she was complaining of stomach pain. After the examination, the doctor on duty reported the suspected rape of the first applicant to the Sarajevo Police Department. Later on the same day, the applicants gave statements in a police station claiming that they had both been sexually assaulted by N.H. On 14 July 1998 the applicants were examined at a gynaecological clinic in Sarajevo.
6. Over the course of the following days, the Sarajevo Police Department interviewed key witnesses in the case, and, after having collected the necessary information, forwarded the case to the competent prosecutor.
7. On 27 December 1999 the public prosecutor issued an indictment against N.H., accusing him of raping and committing lewd acts on the applicants.
8. On 19 December 2001 the Kladanj Municipal Court acquitted N.H. in respect of both applicants. On 4 September 2002 the Tuzla Cantonal Court (“the Cantonal Court”) upheld that judgment in so far as it concerned N.H.’s acquittal of the charges in respect of the second applicant but quashed the remainder of the judgment and remitted it for a retrial.
9. In the retrial proceedings, the Kladanj Municipal Court scheduled the first hearing for 19 December 2002. The first applicant, although duly summoned, failed to appear. She also failed to appear for the subsequent hearings scheduled for 16 and 30 January 2003. Thereafter, the court requested that the first applicant’s address be verified by the Sarajevo Police Department. On 6 February 2003 the police informed the court that the first applicant could not be found at her parents’ address.
10. In the meantime, on 27 May 2003 the applicants, through their father, complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina). They contended in general terms that the proceedings were unfair, especially since N.H. had been acquitted of the charges in respect of the second applicant, and that the judge dealing with the case lacked impartiality.
11. On 20 October 2003 the public prosecutor requested that the next hearing be postponed due to the setting up of a new prosecutor’s office (the Tuzla Canton Prosecutor’s Office) as a part of a judicial reform initiative.
12. The first applicant, as well as her father who was her representative in the domestic proceedings, failed to appear for the subsequent hearings scheduled for 18 November and 4 December 2003, although the court’s subpoenas were duly signed by the applicants’ father.
13. On 5 March 2004 the first applicant submitted a request to the Cantonal Court for the transfer of the criminal case from the Kladanj Municipal Court to another competent court, due to the alleged lack of impartiality of the judge hearing the case. However, the case had already been taken over by the Živinice Municipal Court (“the Municipal Court”; as a result of the 2003 judicial reform the Kladanj Municipal Court had ceased to exist) on 1 March 2004. Consequently, on 9 August 2004 the Cantonal Court rejected the first applicant’s request. On 14 September 2004 the Supreme Court of the Federation of Bosnia and Herzegovina upheld that decision.
14. The first applicant and her father failed to appear for the subsequent hearings on 2 and 17 November 2004, although it would appear that subpoenas were duly served. On 30 November 2004 the Sarajevo Police Department informed the court of the first applicant’s new address. Afterwards, the court scheduled a new hearing for 18 January 2005. A subpoena was delivered to the first applicant’s new address. However, she failed to appear. Her father appeared at the hearing and informed the court that the first applicant had married and had had a child, and that she could not appear before the court due to her husband’s excessive jealousy. Another witness, A.T., also failed to appear at the hearing on 18 January 2005 and her address was subsequently verified several times by the Sarajevo Police Department.
15. The following hearing was scheduled for 7 March 2006. However, the attempted delivery of a subpoena to the first applicant’s new address was unsuccessful, as it was returned to the court with an indication from the postal service that the address was unknown. The hearing was postponed until 21 March 2006. In the meantime, the applicants’ father informed the court that the first applicant would not appear before the court or notify it of her new address.
16. On 20 April 2006 the Sarajevo Police Department informed the court that the first applicant was living at her parents’ home. The first applicant failed to appear for the next two hearings scheduled for 13 June 2006 and 25 January 2007.
17. On 3 July 2006 the Human Rights Commission (the legal successor of the Human Rights Chamber) declared that it lacked jurisdiction ratione materiae to examine the applicants’ case (see paragraph 10 above) since Article 6 of the Convention did not guarantee a right to have an accused person convicted.
18. On 20 August 2006 defence counsel informed the court that he had suffered an injury and was thus unable to appear before the court for a certain period of time. The following hearing was thus scheduled for 21 February 2007. In the meantime, the applicants’ father informed the court of the first applicant’s new address. However, the delivery of a subpoena was unsuccessful, as she could not be found at the given address.
19. On 26 April 2007 the Sarajevo Police Department informed the court of the first applicant’s new address and the fact that she had changed her name. On 24 September 2007 the police informed the court that the first applicant had changed her address again.
20. The first applicant and her father appeared before the court for the following hearing on 10 March 2008. At that hearing, N.H.’s lawyer asked the court to invite two witnesses, A.M. and E.H., to give statements. The court accepted that plea and postponed the hearing until the witnesses were summoned. At the court’s request, the police established that witness E.H. was temporarily working in Slovenia. It appears that the next hearing was only scheduled for 26 February 2010, when E.H. was heard before the court. At that hearing the court decided, with the consent of the parties, not to summon other witnesses and experts, but to have the records of their prior statements, given in a previous main trial before the same presiding judge, read out instead.
21. On 31 January 2011 the Municipal Court acquitted N.H. in respect of the offence of lewd acts, but found him guilty of rape and sentenced him to fourteen months’ imprisonment. On 24 October 2011 the Cantonal Court quashed that decision and remitted the case for a retrial. It appears that those proceedings are still pending.
B. Relevant domestic law and practice
22. The Constitution of Bosnia and Herzegovina (Annex 4 to the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina) entered into force on 14 December 1995. The Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) was set up pursuant to Article VI of the Constitution.
The following are the relevant provisions of the Constitution:
Article II § 2
“The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.”
Article VI § 3
“The Constitutional Court shall uphold this Constitution.
a. The Constitutional Court shall have exclusive jurisdiction to decide any dispute that arises under this Constitution between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina, including but not limited to:Whether an Entity’s decision to establish a special parallel relationship with a neighbouring state is consistent with this Constitution, including provisions concerning the sovereignty and territorial integrity of Bosnia and Herzegovina.Whether any provision of an Entity’s constitution or law is consistent with this Constitution.
Disputes may be referred only by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity.
b. The Constitutional Court shall also have appellate jurisdiction over issues under this Constitution arising out of a judgment of any other court in Bosnia and Herzegovina.
c. The Constitutional Court shall have jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution, with the European Convention for Human Rights and Fundamental Freedoms and its Protocols, or with the laws of Bosnia and Herzegovina; or concerning the existence of or the scope of a general rule of public international law pertinent to the court’s decision.”
Article VI § 4
“Decisions of the Constitutional Court shall be final and binding.”
According to the Constitutional Court’s decision no. U 23/00 of 2 February 2001 the term “judgment” contained in Article VI § 3 (b) of the Constitution cited above is to be interpreted extensively:
“The term includes not only all kinds of decisions and rulings, but also a failure to take a decision where such failure is claimed to be unconstitutional.”
23. The Constitutional Court found a breach of Article 3 of the Convention in a number of cases concerning the lack of an effective investigation into an allegation of ill-treatment (see the Constitutional Court decision no. AP 3299/06 of 17 March 2009).
COMPLAINT
24. Without citing any particular provision of the Convention, the applicants complained of the lack of an effective investigation in their case. This complaint was communicated to the Government under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
THE LAW
25. The Government argued that the applicants had failed to use available domestic remedies, as required by Article 35 § 1 of the Convention. In particular, they indicated that the applicants had failed to appeal to the Constitutional Court.
26. The applicants disagreed.
27. Article 35 § 1 of the Convention reads as follows:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
28. The Court will examine this objection only in respect of the first applicant, as the second applicant’s complaint is in any event manifestly ill-founded for the reasons outlined below (see paragraphs 34-36 below).
29. The Court reiterates that the purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, inter alia, Civet v. France [GC], no. 29340/95, § 41, ECHR 1999‑VI). Whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France, 19 March 1991, § 34, Series A no. 200, and Elçi and Others v. Turkey, nos. 23145/93 and 25091/94, §§ 604 and 605, 13 November 2003).
30. As to legal systems which provide constitutional protection for fundamental rights, such as the one of Bosnia and Herzegovina, the Court recalls that it is incumbent on the aggrieved individual to test the extent of that protection (see Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 16 May 2006 and the authorities cited therein).
31. Turning to the present case, the Court notes that the first applicant pursued an appeal before the Human Rights Chamber which was normally considered as an effective legal remedy (see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005‑XII). Had she pursued it in a proper manner, her application to this Court could not have been dismissed because of her failure to appeal also to the Constitutional Court (see Tokić and Others v. Bosnia and Herzegovina, nos. 12455/04, 14140/05, 12906/06 and 26028/06, § 58, 8 July 2008). However, her appeal was rejected as incompatible ratione materiae with the Convention as the first applicant essentially relied on Article 6 to challenge the fairness of the criminal proceedings and their outcome as regards the second applicant (see paragraphs 10 and 17 above). At no stage did she invoke Article 3 or raise the substance of an Article 3 based complaint, for example, a lack of diligence in the investigation of her complaint. Therefore, she did not make proper use of an otherwise effective domestic remedy and had not provided the domestic courts with the opportunity to put right the alleged violation (compare Azinas v. Cyprus [GC], no. 56679/00, § 41, ECHR 2004‑III; and Ahmet Sadık v. Greece, 15 November 1996, § 33, Reports of Judgments and Decisions 1996‑V; and contrast Gäfgen v. Germany [GC], no. 22978/05, §§ 145-146, ECHR 2010; Castells v. Spain, 23 April 1992, §§ 29-32, Series A no. 236; and Fressoz and Roire v. France [GC], no. 29183/95, § 38-39, ECHR 1999‑I).
32. That being said, the Court notes that it is still open to the first applicant to complain to the Constitutional Court of the lack of an effective investigation into her case under Article 3 given that the criminal proceedings against N.H. are apparently still pending. The Constitutional Court has already had the opportunity to examine such claims on a number of occasions (see paragraph 23 above).
33. The Government’s objection is thus well-founded in respect of the first applicant. Her complaint must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
34. As regards the second applicant, the Court notes that the proceedings concerning her alleged rape terminated on 4 September 2002, when N.H.’s acquittal became final (see paragraph 8 above). The procedural obligation under Article 3 requires that, where the facts warrant it, the investigation leads to effective criminal or other proceedings for the enforcement of the law against those responsible for ill-treatment. This means that the domestic judicial authorities must on no account be prepared to let any physical or psychological suffering inflicted go unpunished. This is essential for maintaining the public’s confidence in, and support for, the rule of law and for preventing any appearance of the authorities’ tolerance of or collusion in unlawful acts (Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006‑XII). In addition, for an investigation to be considered effective, the authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, a detailed statement concerning the allegations from the alleged victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical reports (see, in particular, Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 134, ECHR 2004-IV).
35. That being said, the obligation of the State under Article 1 of the Convention cannot be interpreted as requiring a State to guarantee through its legal system that inhuman or degrading treatment is never inflicted, or that, if it is, criminal proceedings should necessarily lead to a particular sanction (see Beganović v. Croatia, no. 46423/06, § 71, 25 June 2009). There is no absolute obligation for all prosecutions to result in conviction or in a particular sentence.
36. Turning to the present case, and irrespective of the second applicant’s failure to exhaust domestic remedies properly (see paragraph 31 above), it is evident from the documents submitted to the Court that the domestic authorities took all the necessary steps to clarify the circumstances of the case as regards the second applicant, but the evidence uncovered was not sufficient to secure a conviction. The alleged rape was reported to the police on 13 July 1998, when the second applicant gave a statement at the police station. All the necessary steps were taken thereafter to ensure the protection of her rights. On 14 July 1998 she was examined at a gynaecological clinic in Sarajevo. Thereafter, the police interviewed key witnesses in the case and, after having collected the necessary information, forwarded the case to the competent prosecutor. The indictment was issued on 27 December 1999. During the main trial, the court heard fifteen witnesses, including the second applicant, and two medical experts (a neuropsychiatrist and a gynaecologist). Moreover, witnesses whose statements differed were questioned on those statements in court. The Court reiterates that it has no general competence to substitute its own assessment of facts or application of the law for that of the national courts. Nothing in the case file indicates that the domestic courts’ decisions were arbitrary. Therefore, the second applicant’s complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy