AS TO THE ADMISSIBILITY OF
by Zeljko KNAPIĆ
The European Court of Human Rights (First Section), sitting on 4 June 2009 as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 4 January 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 applicant, Mr Zeljko Knapić, is a Croatian national who was born in 1957 and lives in Čakovec. He was represented before the Court by Mr M. Ramušćak, a lawyer practising in VaraZdin. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. StaZnik.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 December 2004 the VaraZdin State Attorney’s Office (Općinsko drZavno odvjetništvo VaraZdin) indicted the applicant before the VaraZdin Municipal Court (Općinski sud u VaraZdinu) for threatening behaviour. The applicant chose to defend himself in person and had no legal representation in the proceedings before the trial court. At the first hearing, held on 11 July 2005, the applicant and one witness gave evidence.
At the beginning of a hearing scheduled for 8 September 2005 at 12.30 p.m., the applicant’s wife approached the presiding judge asking on the applicant’s behalf for an adjournment of the hearing. She presented medical evidence showing that on 4 September 2005 the applicant had been injured and could not walk. The judge, however, continued with the hearing at which three witnesses, all of whom were called on behalf of the prosecution, gave evidence. The prosecution also gave their closing arguments and the trial was concluded. The applicant was found guilty as charged and sentenced to three months’ imprisonment.
On 4 October 2005 the applicant, now legally represented, lodged an appeal whereby he argued that the impugned judgment had not been adequately reasoned, that the reasons given by the trial court had been contradictory and that the facts had been wrongly established. The appeal was dismissed and the first-instance judgment upheld by the VaraZdin County Court (Zupanijski sud u VaraZdinu) on 2 November 2005.
On 30 December 2005 the applicant lodged a request for an extraordinary review of a final judgment (zahtjev za izvanredno preispitivanje pravomoćne presude). It was dismissed by the Supreme Court (Vrhovni sud Repbulike Hrvatske) on 9 March 2006 on the ground that the applicant had failed to specify any ground for lodging his request under the relevant provisions of the Code of Criminal Procedure. Instead, he had challenged only the findings of the lower courts as to the facts of the case, which was not a ground for a request for extraordinary review of a final judgment.
On 16 October 2006 the applicant asked the VaraZdin State Attorney’s Office to lodge a request for the protection of legality with the Supreme Court. This was denied on 11 July 2007.
B. Relevant domestic law
The relevant part of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provides as follows:
“(1) Where a law has been infringed, the State Attorney of the Republic of Croatia may lodge a request for the protection of legality against final court decisions and against the court proceedings preceding such decisions.
(2) The State Attorney of the Republic of Croatia shall lodge a request for the protection of legality against a court decision adopted in proceedings which violated fundamental human rights and freedoms guaranteed under the Constitution, laws or international law.
B. Relevant comparative law
Article 419 of the Serbian Criminal Procedure Code (Zakonik o krivičnom postupku, published in Official Gazette nos. 70/01 and 68/02) reads:
“Where a law has been infringed, the competent State Attorney may lodge a request for the protection of legality against final court decisions and against the court proceedings preceding such decisions.”
The applicant complained under Article 6 §§ 1 and 3(c) and (d) of the Convention about the fact that the hearing of 8 September 2005 had been held in his absence.
The applicant complained that the hearing of 8 September 2005 had been held in his absence although he had submitted a medical certificate showing that he was unable to walk. He relied on Article 6 §§ 1 and 3(c) and (d) of the Convention which, in so far as relevant, read:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”
The Government contended that the application had been lodged after the expiry of the six-month time-limit and that the applicant had not exhausted domestic remedies. In this connection they argued that neither a request for an extraordinary review of a final judgment nor a request for the protection of legality were remedies to be exhausted. The right manner to exhaust domestic remedies would have been for the applicant to lodge a constitutional complaint against the final judgment of the VaraZdin County Court of 2 November 2005. Furthermore, the applicant had failed to complain before the national courts about the violation claimed before the Court.
The applicant did not submit any reply.
The Court does not have to address all the issues raised by the Government but only has to answer the question whether a request for the protection of legality is to be regarded as a relevant domestic remedy to be exhausted for the purposes of Article 35 § 1 of the Convention.
The Court observes 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).
The Court observes further that the purpose of the six-month rule is to promote security of the law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time. Finally, it should ensure the possibility of ascertaining the facts of the case before that possibility fades away, making a fair examination of the question at issue next to impossible (see Kelly v. the United Kingdom, no. 10626/83, Commission decision of 7 May 1985, Decisions and Reports (DR) 42, p. 205, and Baybora and Others v. Cyprus (dec.), no. 77116/01, 22 October 2002).
In the present case the Court notes that the applicant’s request for extraordinary review of a final judgment was dismissed the Supreme Court on 9 March 2006, since the applicant had not relied on any of the grounds for such request prescribed by law. Subsequently, on 16 October 2006, the applicant asked the State Attorney’s Office to lodge a request for the protection of legality. This request was denied on 11 July 2007.
The application to the Court was introduced on 4 January 2008, i.e. less than six months from the date of the decision to refuse the applicant’s request that a request for the protection of legality be lodged, but more than six months after the date of the Supreme Court’s judgment, assuming that this decision is to be taken into account. It follows that the Court may only deal with the application if a request for the protection of legality is considered a remedy within the meaning of Article 35 § 1 of the Convention, in which case the six-month period provided for in that Article should be calculated from the date of the State Attorney’s Office decision to refuse the applicant’s request.
The Court notes that it has jurisdiction in every case to assess in the light of the particular facts whether any given remedy appears to offer the possibility of effective and sufficient redress within the meaning of the generally recognised rules of international law concerning the exhaustion of domestic remedies and, if not, to exclude it from consideration in applying the six-month time-limit.
The Court recalls that, according to its established case-law, the purpose of the domestic remedies rule contained in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged before they are submitted to the Court. The Court notes that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see Akdivar and Others v. Turkey, 16 September 1996, Reports 1996-IV, § 69).
In this connection the Court reiterates that an effective domestic remedy must form a part of the normal process of redress and cannot be of a discretionary character. Remedies which are not directly accessible to the applicant and depend on the discretion of a public official or body cannot be seen as effective either (see, among other authorities, X v. Ireland, no. 9136/80, Commission decision of 10 July 1981, Decisions and Reports (DR). 26, p. 242; V.S. v. the Slovak Republic, no. 30894/96, Commission decision of 22 October 1997; Malfatti v. the Slovak Republic, no. 38855/97, Commission decision of 1 July 1998; Kucherenko v. Ukraine (dec), no. 41974/98, 4 May 1999; A. v. Finland (dec.), no. 44998/98, 8 January 2004; and Lepojić v. Serbia, no. 13909/05, § 53, 6 November 2007).
Since Article 35 § 1 does not require recourse to such remedies, it does not allow the running of the six-month time-limit to be postponed on the ground that they have been resorted to (see Prystavska v. Ukraine (dec.), no. 21287/02, ECHR 2002-X and Nenkov v. Bulgaria (dec.), no. 24128/02, 7 October 2008).
As to the request for the protection of legality, the Court notes that the defendant in the criminal proceedings is not allowed to lodge such a request directly, but only through the State Attorney. Regarding a decision whether or not to lodge such a request the State Attorney enjoys unlimited discretion. A party to the proceedings, including a defendant, has no right, recognised under domestic law to have such a request lodged by the State Attorney. In addition, where the defendant does ask the State Attorney to lodge that request, the discretion of the State Attorney allows the latter not to justify refusing of a request sought by a party. Where such a request is lodged, the party to the proceedings to which the request relates is not the defendant, but the State Attorney.
The Court therefore finds that it was only the public prosecutor who could have filed a request for the protection of legality on behalf of the applicant and, moreover, that the former had full discretion in respect of whether to do so. While the applicant could have sought that this request be lodged, he certainly had no right under national law to make use of this remedy personally. A request for the protection of legality was thus not an effective remedy as understood by Article 35 § 1 of the Convention.
The Court notes that exactly the same remedy as the one in the present case exists under Article 419 of the Serbian Criminal Procedure Code and that it has already found that it was not a remedy to be exhausted in a case concerning Serbia (see Lepojić v. Serbia, no. 13909/05, § 54, 6 November 2007).
The Court thus comes to the conclusion that the six-month time-limit started to run at the latest on 9 March 2006, when the Supreme Court dismissed the applicant’s request for an extraordinary review of a final judgment, even assuming that it was a remedy to be exhausted. The application was lodged on 4 January 2008, more than six months after that.
It follows that the application was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Christos Rozakis