European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2008/140.html
Cite as: [2008] ECHR 140
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FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
38478/05
by Sandra JANKOVIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 24 January 2008 as a Chamber composed of:
Christos
Rozakis,
President,
Loukis
Loucaides,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
judges,
and Søren Nielsen,
Section Registrar,
Having regard to the above application lodged on 18 September 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Sandra Janković, is a Croatian national who was born in 1964 and lives in Split.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Civil proceedings instituted by the applicant
On 3 August 1999 the applicant brought a civil action in the Split Municipal Court (Općinski sud u Splitu) against two individuals, M.P. and I.P., seeking protection against disturbance of her possession of a room and common premises in a flat in Split.
After the first-instance judgment by default of 16 September 1999 had been quashed at the hearing held on 9 November 1999 before the Split Municipal Court, the subsequent hearings were held on 21 December 1999, 22 February, 28 March, 3 May and 7 June 2000 when a fresh judgment, accepting the applicant's claim, was adopted. It was, however, quashed by the Split County Court (Zupanijski sud u Splitu) on 17 August 2000 and the case was remitted to the Municipal Court.
In the fresh proceedings the Municipal Court held hearings on 7 June, 5 September and 22 November 2001 and 22 January, 26 February, 3 April and 14 May 2002. On this latter date a judgment ordering that the applicant regain her co-possession of the flat in question was adopted. The subsequent defendants' appeal was declared inadmissible in a decision of the Split Municipal Court adopted on 24 May 2002 which was upheld by the Split County Court on 7 March 2003.
Since the defendants in the civil proceedings had failed to comply with the judgment of 14 May 2002, the applicant lodged a request for an enforcement order with the Split Municipal Court on 31 March 2003. The order was issued on 10 April 2003 and its execution was scheduled for 5 June 2003. It was duly carried out.
Meanwhile, on 9 August 2002 the applicant petitioned the Constitutional Court (Ustavni sud Repbulike Hrvatske) complaining about the length of the above civil proceedings. In its decision of 18 March 2005 the Constitutional Court dismissed the complaint as ill-founded finding that the proceedings had been concluded within reasonable time.
2. Criminal proceedings instituted by the applicant
The very next day following the applicant's repossession of the flat in question, i.e. on 6 June 2003, she was attacked upon her arrival to the flat.
In her criminal complaint of 2 October 2003 filed against seven individuals, with the Split Municipality State Attorney's Office (Općinsko drZavno odvjetništvo Split) the applicant alleged, inter alia, that on 6 June 2003 at about 8 p.m when she arrived in front of the flat in question three individuals came out of the flat and started to shout at her preventing her from entering the flat. One of them, J.M., a man of 42, kicked her, pulled her by her clothes and hair and threw her down the stairs all the while shouting obscenities at her and calling her names. The applicant also submitted medical evidence showing that she had sustained blows to her elbow and back. These injuries were characterised as minor bodily injuries.
In its decision of 11 November 2003 the State Attorney's Office decided not to open an official investigation on the ground that under the relevant domestic law prosecution for causing bodily injuries of a lesser nature was to be conducted upon a private charge lodged by the victim. The applicant was hence instructed to proceed accordingly and to lodge within eight days a request for an investigation with a Split County Court investigation judge.
The applicant complied with the said instruction on 3 December 2003 and submitted a request that an investigation be opened in connection with the above event. She described the event in question in details and also submitted that it constituted numerous criminal offences.
On 19 September 2005 the Split County Court investigation judge declared the applicant's request for an investigation (istaZni zahtjev oštećene kao tuZiteljice) inadmissible. The relevant part of this decision reads:
“The injured party acting as subsidiary prosecutor (oštećena kao tuZitelj) has lodged with this court a request for an investigation against J.M. and others ...
Pursuant to Article 71 paragraph 3 of the Code of Criminal Procedure, this court invited the injured party acting as subsidiary prosecutor on 5 January 2005 and once again orally, to correct her request and warned her that it would be declared inadmissible if she would not comply with the instruction within the set time-limit. The injured party acting as subsidiary prosecutor answered both calls but has failed to correct her request for an investigation in accordance with the court's instruction. The court considers the injured party's submission incomprehensible and incomplete. Therefore, it had to be declared inadmissible pursuant to Article 71 paragraph 3 of the Code of Criminal Procedure.”
On 16 January 2006 the applicant lodged an appeal against the above decision with the Split County Court. She claimed that she fully complied with the instructions given in the court's letter of 5 January 2005 correcting her initial request for an investigation so that it contained all necessary information. She further contended that she had never received an oral invitation. The appeal is still pending.
On 23 April 2007 the applicant also petitioned the Supreme Court (Vrhovni sud Republike Hrvatske) about the length of the private prosecution proceedings. On 20 September 2007 the applicant's complaint was dismissed.
3. Misdemeanour proceedings
During the incident of 6 June 2003 the police were called and arrived on the spot. The police lodged a misdemeanours complaint with the Split Court for Misdemeanours against three individuals, including J.M., for disturbance of public peace and order alleging that they physically attacked the applicant, kicked her on the whole body, pulled her by hair and threw her down the stairs all the while shouting obscenities at her and calling her names.
In its decision of 11 May 2005 the Court for Misdemeanours found all three defendants guilty for insulting the applicant with defamatory expressions and sentenced them to pay a fine in the amount of Croatian kunas 375. That court did not address the allegations of physical attack against the applicant.
B. Relevant domestic law
The relevant parts of the Criminal Code read a follows (Kazneni zakon, Official Gazette no. 110/1997):
Article 98
Whoever causes bodily injury to another person or impairs another person's health shall be fined or sentence to imprisonment not exceeding one year.
Article 102
Criminal proceedings for the offence of bodily injury (Section 98) shall be instituted upon a private charge.
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 allows for the institution and conduct of criminal proceedings only at the request of a qualified prosecutor.
Article 13 obliges the court conducting the criminal proceedings to instruct an ignorant participant to those proceedings about his or her rights and the consequences of a failure to undertake a required step therein.
Articles 47 to 61 regulate the rights and duties of the private prosecutor and the injured party as subsidiary prosecutor. Pursuant to Article 55, a duty lies with the State Attorney to inform the injured party within eight days of the decision not to prosecute and of his or her right to take over the proceedings as well as to instruct that party on the steps to be taken.
Article 71 requires that private charges, bills of indictment, requests for prosecution, legal remedies and other statements and information be submitted in writing. Such submissions must be comprehensible and contain necessary information for the court to proceed upon them. When submissions do not contain the necessary information or are incomprehensible, the court conducting the proceedings has to invite the person concerned to comply with the above requirements. If the submissions have not been corrected as required the court will declare them inadmissible.
Article 200 regulates, inter alia, the required content of a request for investigation, that being: identification of the person against whom the request is submitted, description and legal qualification of the offence at issue, the circumstances confirming a reasonable suspicion that the person concerned has committed the offence at issue and the existing evidence.
THE LAW
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
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.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
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 any of the above Articles of the Convention. It follows that these complaints are inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaints concerning the alleged failure of the domestic authorities to provide her adequate protection against an act of violence and the length of the civil proceedings instituted by her;
Declares the remainder of the application inadmissible.
Søren Nielsen Christos Rozakis
Registrar President