European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Ljerka KOVAC v Croatia - 49910/06 [2010] ECHR 386 (2 March 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/386.html
Cite as: [2010] ECHR 386
[New search] [Contents list] [Printable RTF version] [Help]
FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
49910/06
by Ljerka KOVAČ
against Croatia
The European Court of Human Rights (First Section), sitting on 11 March 2010 as a Chamber composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and André
Wampach, Deputy
Section Registrar,
Having regard to the above application lodged on 23 November 2006,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Ljerka Kovač, is a Croatian national who was born in 1941 and lives in VaraZdin.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 5 January 1998 the applicant concluded a loan agreement whereby she as a lender lent a sum of 5,000 German marks (DEM) to company A. in return for monthly interest at 2%. The company also agreed to return the money, together with the accrued interest, upon the applicant’s demand.
1. Civil proceedings against the company A.
On 13 August 1998 the applicant brought a civil action in the VaraZdin Municipal Court (Općinski sud u VaraZdinu) against company A., seeking repayment of the loan.
On 5 October 1998 the court ruled in favour of the applicant and ordered the respondent to pay her 17,600 Croatian kunas (HRK) together with the statutory default interest as of 19 June 1998.
On 11 February 1999 the VaraZdin County Court (Zupanijski sud u VaraZdinu) dismissed an appeal by the respondent and upheld the first-instance judgment. The second-instance judgment was served on the applicant’s representative on 5 March 1999.
The applicant submits that she never instituted enforcement or bankruptcy proceedings in order to enforce the above judgment because company A. had no assets.
On 26 March 2001 the VaraZdin Commercial Court (Trgovački sud u VaraZdinu) issued a decision whereby it instituted summary liquidation proceedings against company A. of its own motion and invited the company’s creditors to report their claims to the court within three months of the publication of its decision in the Official Gazette. The decision was published in the Official Gazette no. 37 of 25 April 2001. The outcome of these proceedings is unknown but it appears that the company still exists as a legal entity.
2. Criminal proceedings against B.D. and N.D. for fraud
On 7 December 2000 the VaraZdin Municipal State Attorney indicted the directors (and only shareholders) of company A., Mr B.D. and Mrs N.D., before the VaraZdin Municipal Court on several counts of fraud and a number of other criminal offences. On 4 June 2003 the court found them guilty as charged and sentenced them each to seven years’ imprisonment.
Following an appeal by the defendants, on 17 February 2004 the VaraZdin County Court reduced their sentence to four years and four months and four years and two months respectively.
The applicant participated in those proceedings as an injured party (oštećenik).
3. Proceedings before the Constitutional Court
On 4 March 2004 the applicant lodged a constitutional complaint under section 63 of the Constitutional Court Act complaining about the non-enforcement of the above-mentioned judgment of 5 October 1998, as upheld on 11 February 1999, and the length of the above civil and criminal proceedings.
On 14 June 2007 the Constitutional Court declared the applicant’s complaint inadmissible. As regards the above criminal proceedings, the court held that in those proceedings the applicant had not participated as a suspect or the accused, nor had they concerned a determination of her rights or obligations. Rather, she had participated in those proceedings only as an injured party and therefore could not complain about their length.
As regards the above civil proceedings, the court, after noting that the applicant had lodged her constitutional complaint in 2004 whereas the proceedings complained of had ended in 1999, reiterated its constant case-law according to which the Constitutional Court Act could not be interpreted so as to allow constitutional complaints to be lodged about the length of proceedings that had already ended.
As regards the non-enforcement of the judgment of 5 October 1998, as upheld on 11 February 1999, the court noted that it could in principle examine the length of enforcement proceedings or decisions rendered in such proceedings. However, the applicant had never instituted any enforcement proceedings with a view to enforcing the judgment.
4. Civil proceedings against B.D and N.D.
Meanwhile, on 23 July 1999 the applicant, together with thirty-eight other plaintiffs, brought a civil action in the VaraZdin Municipal Court against the directors (and only shareholders) of the company A., Mr B.D. and Mrs N.D., seeking pecuniary damages. On 18 July 2006 the court ruled for the plaintiffs. In particular, it ordered the respondents to pay the applicant 2,556.46 euros (EUR).
On 26 October 2007 the VaraZdin County Court dismissed an appeal by the respondents and upheld the first-instance judgment.
5. Criminal proceedings against B.D. for bodily harm
On 7 January 2002 the applicant was assaulted in the street by B.D., who hit her once in her face with a closed fist, as a result of which she sustained injuries (a bruised nose and cracked nose cartilage).
On 10 June 2002 she submitted a motion to indict (optuZni prijedlog) B.D. to the VaraZdin Municipal Court accusing him of inflicting minor bodily injury.
On 12 July 2005 the Municipal Court found the accused guilty and sentenced him to thirty-five days’ imprisonment.
On 3 October 2005 the applicant appealed against the first-instance judgment. In her appeal she wrote, inter alia:
“From the very beginning of these proceedings the bias of Judge M. was obvious, which I will explain in my appeal.
... in the judgment Judge M. gave credence to the statement of the accused because his statement was ‘logical and convincing’. ... Such a view on the part of the judge I can only qualify as an obvious bias.
...
Only then did I realise why the judge was simply [giving vent to her instincts and] harassing my witnesses [when examining them] regarding the injury the accused B.D. had inflicted on me by hitting me.
...
That statement was given by my husband S.M. on 26 April 2005 ... and all this is a result of him being provoked by the judge.
...
On 26 April 2005 the main hearing started anew because of a deliberate lapse of the two-month time-limit. ... B.D. ... suggests that the witness [B.G.] be summoned and examined at the hearing. Of course that this proposal from B.D. was accepted even though the judge knew why B.D. had not attended the hearing when B.G. and S.M. had testified, but B.D. has a statutory right to dictate the pace of the court proceedings. ... When my husband had to testify again on 26 April 2005 he was so upset that he ... exaggerated my injuries in order to express his rage [as regards] such conduct – protraction of these criminal proceedings. Is it then really surprising that there are so many unsolved cases if for such a simple criminal proceedings five or maybe even more hearings have to be scheduled? Anyway, by then I already had the impression that the judge had already delivered a judgment, so I was not surprised when on 27 September 2005 I received the judgment as it stands. The fact that my husband was obviously upset was noticed by other lenders who were present in the courtroom and followed the trial ..., who were appalled by such conduct of the proceedings in which the bias of the judge could not be hidden.
...
The finding of the judge ... in which she gives credence to the statement of the accused because his statement is ‘logical and convincing’. ... is regrettable but even more biased. What is important is that the accused gained the trust of the court.
...
In ... the judgment the judge again incorrectly states that ‘the plaintiff, S.M. and B.G. are all investors in the company of the injured party.’ (instead of ‘the injured party’ it should be ‘the accused’). First of all Mr G. and I are lenders, which is a big difference from investors, and the judge should know that difference given her job description.
...
In the ... judgment the evident bias of the judge is visible because it cannot be said that she is inexperienced or incompetent when she assesses my behaviour toward the accused with bias ...
...
The accused B.D. is lucky that he found understanding and protection in the judge. How wisely cited was the statement of my husband in the judgment and its intention, but the judge did not indicate when this statement had been given because my husband had had to testify twice ...
...
It is visible that in that part of the judgment the judge again ruled with a certain intent against me ...
...
I am asking the VaraZdin County Court to assign my appeal to the members of the panel who did not decide on the appeal of married couple D. on 17 February 2003 in the criminal proceedings no. K-475/00, and these are judges Z.P., D.K. and M.O., because their protection of married couple D. and bias in delivering the judgment was obvious. As I was present at the [hearing], I witnessed that myself.
...
Having regard to these protracted court proceedings, the unwarranted scheduling of five hearings and biased judgment, which in a way justifies the act of physical violence of the accused against me, as well as deliberate failure to record in the minutes his statement that he was not sorry for hitting me, it is not surprising that, because of certain judges, other citizens and I think the judiciary is corrupt. ... it is no wonder that in our country the legal order does not function and that every day crime and violence are burgeoning.”
On 8 November 2005 the VaraZdin County Court dismissed the applicant’s appeal and upheld the first-instance judgment.
6. Contempt of court proceedings
After it completed the preliminary examination of the applicant’s appeal of 3 October 2005 in the above criminal proceedings, on 8 November 2005 the panel of the VaraZdin County Court composed of judges I.M., S.M. and S.V.-P. issued a decision whereby it fined the applicant HRK 5,000 for contempt of court. The decision, which was served on the applicant on 22 November 2005, in its relevant part read as follows:
“I. Pursuant to section 73(1) of the Criminal Procedure Act ... the private prosecutor Ljerka Kovač ... is hereby fined 5,000 [Croatian] kunas for insulting the court in her appeal lodged against the judgment of the VaraZdin Municipal Court of 12 July 2005 ...
II. The private prosecutor Ljerka Kovač shall pay the above fine within six months of this decision becoming final.
III. If the private prosecutor does not pay the above fine of HRK 5,000 in full or in part within six months of this decision becoming final, the fine shall, pursuant to section 157 of the Criminal Procedure Act, be converted into a prison sentence, which shall be imposed by applying the provisions of the Criminal Code mutatis mutandis.
Reasons
Apart from the accused B.D., the private prosecutor Ljerka Kovač also lodged an appeal against the judgment of the VaraZdin Municipal Court of 12 July 2005 ...
While deciding on the appeal of the private prosecutor ... on 8 November 2005, this [court] found that the private prosecutor in her appeal against the above-mentioned judgment of the VaraZdin Municipal Court insulted the court. Since the provision of section 73 of the Criminal Procedure Act is imperative as it provides that ‘the court shall fine by a fine up to 20,000 [Croatian] kunas ...’ – which means that the court is obliged to fine a person if he or she insults the court in his or her written submissions – this [court], finding that the private prosecutor insulted the court, fined [her] as indicated in the operative provisions of this decision.
Namely, in her appeal the private prosecutor, inter alia, states [the following] insulting incriminations: ‘From the very beginning of the proceedings the bias of Judge M. was obvious.’ ... ‘Such an attitude on the part of the judge I can only qualify as an obvious bias.’ ... ‘Only then did I realise why the judge was simply harassing my witnesses.’ ... ‘All this is a result of my husband being provoked by the judge.’ ... ‘Because of the deliberate lapse of the two-month time-limit.’ ... ‘but Mr D. has a statutory right to dictate the pace of the court proceedings’ ... ‘expressed his rage [as regards] such conduct – protraction of these criminal proceedings’ .. ‘Anyway, by then I already had the impression that the judge had already delivered a judgment, so I was not surprised when on 27 September 2005 I received the judgment as it stands.’ ... ‘I am appalled by such conduct of the proceedings in which the bias of the judge could not be hidden.’ ... ‘The finding of the judge ... is regrettable but even more biased.’ ... ‘The only important thing is that the accused gained the trust of the court.’ ... ‘The judge should know that difference given her job description.’ ... ‘The evident bias of the judge is visible because it cannot be said that she is inexperienced or incompetent when she assesses my behaviour.’ ... ‘The accused B.D. is lucky that he found understanding and protection in the judge.’ ... ‘How wisely cited was the statement of my husband in the judgment and its intention’ ... ‘The judge again ruled with a certain intent against me.’ ... ‘I am asking the VaraZdin County Court to assign my appeal to the members of the panel who did not decide on the appeal of married couple D. on 17 February 2003 in the criminal proceedings no. K-475/00, and these are judges Z.P., D.K. and M.O., because their protection of married couple D. and bias in delivering the judgment was obvious. As I was present at the [hearing], I witnessed that myself.’ ... ‘Deliberate failure to record his statement.’... ‘It is not surprising that, because of certain judges, other citizens and I think the judiciary is corrupt.’... ‘it is no wonder that in our country the legal order does not function and that every day crime and violence are burgeoning.’
This [court] finds that the above-mentioned blackened words from the private prosecutor’s appeal are insulting in their content and contain insulting allusions ... questioning professional qualities of the Judge M.M. of the VaraZdin Municipal Court as well as the judges of the County Court Z.P., D.K. and M.O. whose withdrawal the private prosecutor in fact asked for in her appeal as [they were], in [her] view, obviously biased ...
In this [court’s] view, the appeal of the private prosecutor is insulting and demeaning as a whole, which is particularly exemplified in the above cited passages from her appeal, where [she] expresses blatant arrogance as regards the judges and judiciary in general. Her belittling and giving lessons to everyone is apparent. She is demeaning the judges, which is particularly exemplified when the private prosecutor dares to say that Judge M.M. was harassing her witnesses ... that the public was appalled by the way the judge conducted the proceedings, that the finding of the judge was regrettable but even more that it was biased, that the judge should know what investment is, that the judge is not inexperienced or incompetent when she assesses the behaviour of the private prosecutor toward the accused with bias. Therefore, in this [court’s] view, there is no doubt that the private prosecutor in her appeal insults and belittles the court by the above-mentioned incriminations. This is so especially because the above-mentioned allegations are not necessary for elucidation of the arguments raised in the appeal, which incriminations also contain insulting allusions concerning the professional qualities of Judge M.M. and the judges of this court, by which the private prosecutor objectively tarnishes the reputation of the court.
Having regard to the line of incriminations in the private prosecutor’s appeal, by which she insults the judges and points at some [of them] while expressing her opinions on bias and corruption of certain judges and judiciary as a whole, there is no doubt that this [court] was obliged, within the meaning of section 73(1) of the Criminal Procedure Act, to fine [her].
The above fine appears adequate given the incriminations in the appeal and their number and severity. This fine the private prosecutor will be able to pay ... even though she refused to indicate the amount of her pension. However, it is evident [from the case file] that she owns a flat so her refusal to indicate the amount of her pension – which she is otherwise obliged [to do] – only shows her arrogance and demeaning of certain judges and the court as a whole.
This [court] however [established that her pension amounts to HRK 3,900, and took [it] into account when determining the amount of the fine. The court therefore considers that she will be able to pay the fine of HRK 5,000 within the six-month time-limit. [It is to be noted] that if the above fine is not paid in full or in part within [that] time-limit, it will be converted into an appropriate prison sentence on the basis of section 157 of the Criminal Procedure Act by applying the provisions of the Criminal Code mutatis mutandis.”
On 25 November 2005 the applicant lodged an appeal against that decision, arguing, inter alia, that the remarks made in her appeal of 3 October 2005 had been taken out of context and that their aim had not been to insult but to undermine the lawfulness of the appealed first-instance judgment of 12 July 2005. By making those remarks she had been expressing her opinion and had had a reason to believe that it was valid. However, she had been fined only because she had dared to suspect the impartiality of Judge M.M. and to complain about infallible judges.
By its decision of 22 December 2005 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed the applicant’s appeal and upheld the first-instance decision. That decision, which was served on the applicant on 3 April 2006, in its relevant part read as follows:
“The [VaraZdin County Court] correctly found that the private prosecutor Ljerka Kovač, in her appeal lodged against the judgment of the VaraZdin Municipal Court of 12 July 2005, expressed disrespect for judicial office and thereby insulted the court.
Namely, the fact is that by the remarks made in the appeal at issue, which are highlighted in the contested decision, the court is being insulted and belittled. [This is so] because those incriminating remarks were obviously not necessary for elucidation of the grounds for the appeal. [B]y their content [they] represent demeaning and insulting allusions and expressions, which groundlessly question the professional qualities of judges, insult the court as a whole, show arrogance in respect of judges and judiciary in general and thereby objectively tarnish the reputation of the court.
As the court is, on the basis of the imperative statutory provision of section 73(1) of the Criminal Procedure Act, obliged to impose a fine when it finds that the conditions set forth in that provision have been met, the imposition of a fine on the private prosecutor – as a measure to secure [procedural] discipline of the parties – in order to prevent her possible such or similar behaviour in the future – was well founded.
Therefore, the private prosecutor’s appeal, in which she does not actually deny making insulting remarks, is unfounded.
Contrary to the arguments raised in the appeal, the amount of the imposed fine of HRK 5,000 [Croatian] kunas, which according to section 73(1), may go up to HRK 20,000, is correctly apportioned in accordance with the number, gravity and severity of insults, income and the general behaviour of the private prosecutor so far, where regard should be had to the fact ... that the fine was ordered to be paid within six months.”
On 9 May 2006 the applicant lodged a constitutional complaint under section 62 of the Constitutional Court Act against the second-instance decision. On 26 June 2006 the Constitutional Court declared the applicant’s constitutional complaint inadmissible and served its decision on her on 15 July 2006. It held that the impugned decision did not concern the merits of the case and as such was not susceptible to constitutional review.
B. Relevant domestic law
1. The Constitutional Court Act
The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:
Section 62
“1. Any person may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional self-government, or a legal person invested with public authority, on his or her rights or obligations, or about suspicion or accusation of his or her having committed a criminal offence, has violated his or her human rights or fundamental freedoms, or right to local or regional self-government, guaranteed by the Constitution (hereinafter: constitutional rights)...
2. If another legal remedy is allowed against the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.
3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] are allowed, remedies shall be considered exhausted only after the decision on these legal remedies has been given.”
Section 63
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits ...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months of the date a request for payment is lodged.”
2. The Criminal Procedure Act
The Criminal Procedure Act of 1997 (Zakon o kaznenom postupku, Official Gazette of the Republic of Croatia nos. 110/1997, 27/1998 (corrigendum), 58/1999, 112/1999, 58/2002, 143/2002 (corrigendum), 62/2003 (consolidated text) and 115/2006) in its relevant part provided as follows:
Section 73
“1. The court shall impose a fine of up to 20,000 [Croatian] kunas on defence counsel, a legal representative, legal guardian, injured party or private or subsidiary prosecutor, witness or expert who insults the court or another participant in the proceedings orally or in his or her written submissions. The decision on the fine shall be rendered by the investigation judge or the panel before which the insulting remark was made or, if such a remark was made in a written submission, the decision shall be rendered by the court which has to decide on that submission. An appeal lies against this decision. ...
2. The fine imposed according to paragraph (1) of this section shall have no effect on the prosecution or imposition of a [criminal] sanction for the criminal offence committed by the insult.”
Section 157
“When a fine imposed in accordance with the provisions of this Act is not paid in full or in part within the fixed time-limit, the court may convert it into a prison sentence which shall be imposed by applying the provisions of the Criminal Code mutatis mutandis.”
COMPLAINTS
THE LAW
A. Alleged violations of Articles 6 § 1 and 10 of the Convention in the proceedings for contempt of court
The applicant complains under Article 6 § 1 of the Convention that the above contempt-of-court proceedings were unfair. She also complains under Article 10 of the Convention that by fining her for the views she expressed in her appeal of 3 October 2005 the domestic courts infringed her freedom of thought and her freedom of expression. The relevant part of Articles 6 § 1 and 10 read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an ... impartial tribunal established by law.”
Article 10
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for maintaining the authority and impartiality of the judiciary.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints 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.
B. Alleged violations of Articles 6 § 1 and 13 of the Convention on account of excessive length of the civil proceedings and lack of an effective remedy in this respect
The applicant further complains under Article 6 § 1 that the length of the above two sets of civil proceedings was excessive, that the judgments delivered in her favour in those proceedings have never been enforced, and that she did not have an effective remedy for these complaints. Article 13 reads as follows:
“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.”
As regards the first set of civil proceedings, the Court notes that they began on 13 August 1998 and ended on 5 March 1999. They thus lasted some six months at two levels of jurisdiction, which period cannot be considered excessive.
As regards the second set of civil proceedings, the Court refers to its decision in the Slaviček case, where it held that since 15 March 2002 (when the 2002 Amendments to the Constitutional Court Act entered into force) a constitutional complaint under section 63 of the Constitutional Court Act has represented an effective domestic remedy in respect of the length of judicial proceedings in Croatia (see Slaviček v. Croatia (dec.), no. 20862/02, ECHR 2002-VII). It follows that in the period after 15 March 2002 the applicant could have lodged a constitutional complaint about the length of the second set of civil proceedings. However, she did not do so.
As regards the alleged non-enforcement of the judgments delivered in her favour in these two sets of proceedings, the Court notes that the applicant never applied for their enforcement nor did she report her claim against the company A. in the liquidation proceedings once these proceedings were opened against that company. In these circumstances, she cannot complain that the judgments in her favour were never enforced.
It follows that the applicant’s complaints under Article 6 § 1 of the Convention concerning the length of the above two sets of civil proceedings and non-enforcement of judgments delivered in her favour are inadmissible under Article 35 §§ 1 and 3 thereof for non exhaustion of domestic remedies and as manifestly ill-founded. Her complaint under Article 13 is inadmissible under Article 35 § 3 as manifestly ill-founded. Therefore, these complaints must be rejected pursuant to Article 35 § 4 of the Convention.
C. Alleged violation of Article 6 § 1 of the Convention on account of unfairness of the criminal proceedings for fraud
The applicant also complains under Article 6 § 1 of the Convention that the above criminal proceedings for fraud were not fair and that the penalty imposed on the accused was too lenient.
To the extent that the applicant complains about the unfairness of the criminal proceedings in question, the Court first notes that the applicant was not the accused but the injured party in those proceedings. Thus, the criminal limb of Article 6 § 1 does not apply. As regards the applicability of Article 6 § 1 under its “civil head”, the Court reiterates that criminal proceedings may involve determination of civil rights and obligations not only if the injured party submitted a civil claim in those proceedings but also “if the outcome of the proceedings is decisive for the ‘civil right’ in question.” (see Perez v. France [GC], no. 47287/99, § 65, ECHR 2004 I). Therefore, even though the applicant did not file a civil claim in the criminal proceedings complained of, it may be argued that their outcome might have been decisive for the outcome of the civil proceedings instituted on 23 July 1999 by the applicant and thirty-eight other plaintiffs (creditors of the company A.) against B.D. and N.D. (see above). However, even assuming applicability of Article 6 § 1 to the criminal proceedings at issue, the Court notes that no specific facts or arguments which could lead to the conclusion that the courts had lacked impartiality or that the proceedings had otherwise been unfair were put forward by the applicant, and the proceedings do not appear to raise any issue in that respect.
In so far as the applicant complains that the penalty imposed on the accused was too lenient, the Court reiterates that the Convention does not guarantee a right to have criminal proceedings instituted against third parties or to have such persons convicted (see Krzak v. Poland, no. 51515/99, § 24, 6 April 2004, and Perez, cited above, § 70).
It follows that this complaint is inadmissible as manifestly ill-founded and incompatible ratione materiae with the provisions of the Convention within the meaning of its Article 35 § 3 and must be rejected pursuant to Article 35 § 4 thereof.
D. Alleged violation of Article 6 § 1 of the Convention on account of unfairness of the criminal proceedings for bodily harm
Lastly, the applicant complains under Article 6 § 1 of the Convention that the above criminal proceedings she instituted against B.D. for bodily harm were unfair. She also complains in this regard under Articles 3 and 14 of the Convention that B.D.’s assault on her amounted to torture and degrading treatment which the authorities failed to sanction adequately, thereby discriminating against her on the basis of her sex. Articles 3 and 14 of the Convention read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
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.”
As regards the complaints under Articles 3 and 14 of the Convention, the Court considers that in the present case it can leave open the question whether or not the injuries sustained by the applicant reached the level of severity required for Article 3 to apply. For the Court it is sufficient to note that B.D. was criminally prosecuted, convicted and sentenced to thirty-five days’ imprisonment for assaulting the applicant, and that the State thereby discharged its positive obligations under Article 3 of the Convention. It follows that these complaints are inadmissible under Article 35 § 3 of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.
As regards the related complaint under Article 6 of the Convention concerning the alleged unfairness of the criminal proceedings for minor bodily harm, the Court refers to its above finding in respect of the applicant’s complaint about the alleged unfairness of the criminal proceedings for fraud. It follows that this complaint is also inadmissible as manifestly ill-founded with the provisions of the Convention within the meaning of its Article 35 § 3 and must be rejected pursuant to Article 35 § 4 thereof.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning freedom of expression and impartiality;
Declares the remainder of the application inadmissible.
André Wampach Christos Rozakis
Deputy Registrar President