REMETIN v. CROATIA (NO. 2) - 7446/12 - Chamber Judgment [2014] ECHR 841 (24 July 2014)

In the case of Remetin v. Croatia (No. 2),

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro-Lefèvre, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Paulo Pinto de Albuquerque,
          Erik Møse,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 1 July 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 7446/12) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Tomislav Remetin (“the applicant”), on 5 July 2011.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant alleged, in particular, a lack of appropriate procedural response on the part of the domestic authorities, as required under Articles 3 and 8 of the Convention, to acts of violence against him by a group of private individuals.

4. On 13 November 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born on 8 September 1989 and lives in Dubrovnik.

A. The incident of 4 March 2008

6. On 4 March 2008, at around 7.00 p.m., the Dubrovnik Police Station (Policijska uprava Dubrovačko-neretvanska, Policijska postaja Dubrovnik; hereinafter: the “police”) received an anonymous call informing the police that a mass fight was planned in the vicinity of the Naval High School in Dubrovnik (Pomorsko-tehnička škola u Dubrovniku). Three police officers were immediately sent to the scene.

7. When the police officers arrived at the scene there was no fighting going on but inside the school they found the applicant with an injury on his forehead. He was immediately taken to hospital and examined by a doctor. The applicant’s medical record of 4 March 2008 reads:

“Diagnosis

VLC reg supraorbicularis lat dex

Medical history and status

Allegedly took part in fighting and sustained a cut of three centimetres above the right brow bone. He did not lose consciousness, he recollects the event, he did not vomit. No neurological symptoms.

The wound was treated, no sign of fracture.

An antibiotic is recommended, bandage every third day in clinic.

Follow-up by a surgeon if necessary.”

8. On the same date the applicant was interviewed by the police. He stated that he had been standing in front of the school together with his classmates and that all of a sudden he had been hit on the head with a rock, which had knocked him to the ground. His friends had helped him to stand up and carried him inside the school. He himself had not been involved in any fighting and had had no idea that something might happen.

9. On 23 May 2008 the applicant lodged a criminal complaint with the Dubrovnik Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Dubrovniku; hereinafter: the “State Attorney’s Office”) against unknown perpetrators, under Articles 99 and 331 of the Criminal Code (see paragraph 54 below), alleging that on 4 March 2008 he had been injured by a group of hooligans in front of his school. One of them, who he could not identify, had thrown a rock at his head hitting him on the forehead. Blood had immediately started to run and one of his friends had to carry him inside the school.

10. The applicant submitted the medical record of 4 March 2008 and explained that his father had erased part of the text on the medical record which suggested that he had taken part in a fight because he had not wanted to have something untrue noted on the record.

11. On 29 May 2008 the State Attorney’s Office forwarded the applicant’s criminal complaint to the police and requested a report on the matter.

12. In the period between 5 and 30 June 2008 the police interviewed several people, including the doctor who had drafted the medical report of 4 March 2008. He considered that the applicant’s injury should be classed as a minor bodily injury. The police also questioned V.Č. and I.N., two of the applicant’s schoolmates, who confirmed his version of events.

13. The police also obtained a medical opinion of 6 June 2008 recommending that the applicant undergo further neurological examination.

14. On 2 July 2008 the police informed the State Attorney’s Office of the results of their preliminary investigation. The relevant part of the police report reads:

“... a group of boys from Mokošica, headed by P.H., in which G.V. and M.P. and several other unidentified individuals were involved, went to the front of the Naval High School on 4 March 2008 in order to take revenge [for a previous fight between a student from the Naval School and P.H.]. When the students from the school saw the group of boys from Mokošica they ran away or headed back into the school, while a group of students attempted to leave the schoolyard passing by the [group of boys from Mokošica]. At that point the boys from the Mokošica group started to throw rocks at them and one rock hit Tomislav Remetin on his head, causing him a minor bodily injury, namely a cut on his forehead. Then some students from Lapad, among whom was A.N., started to throw rocks back. During this clash one rock hit M.P. from the group of boys from Mokošica on his head, causing him a cut on his forehead, which was a minor bodily injury.”

15. In connection with the attack, on 20 November 2008 the applicant underwent another medical examination. The doctor found no damage to his brain but an inflammation of his sinuses and referred him for further treatment.

16. On 18 May and 6 July 2009 the applicant’s father was allowed to inspect the case file kept by the State Attorney’s Office.

17. On 27 December 2010 the applicant asked for information concerning his case from the police on the grounds that he wanted to lodge an application with the Court.

18. On the same date he lodged a civil claim for damages with the State Attorney’s Office on account of his physical and mental suffering caused by the attack. He pointed out that the police report had identified a number of individuals who had taken part in the attack and that a number of people had been interviewed. He further argued that he, and his father, had already orally requested that the police and the State Attorney’s Office provide copies of the relevant documents from the case file but that their request had been denied. He therefore asked for copies of all the relevant reports on the grounds that he wished to lodge an application with the Court.

19. The police replied on 28 December 2010 and 12 January 2011 informing the applicant that he should submit his request for information to the State Attorney’s Office.

20. On 8 February 2011 the State Attorney’s Office informed the applicant that he could come and inspect the case file if he so wished. The State Attorney’s Office also pointed out that the police had not identified the persons who had injured him, which meant that the case was being treated as a criminal complaint against an unknown perpetrator, and that it has been all the time open to the applicant to lodge a criminal complaint against any individual he suspected of committing the offence.

21. On 22 February 2011 the applicant asked the State Attorney’s Office to allow him to copy the relevant documents from the case file because he wanted to institute proceedings before the Court, pointing out that by the letter of 8 February 2011 he had only been allowed to inspect, and not copy, the case file.

22. By letters of 4 July and 27 July 2011 the State Attorney’s Office informed the applicant that he could come on 14 July and 19 August 2011 to inspect and copy the case file.

23. In the meantime, on 5 July 2011, the applicant lodged an application with the Court. He did not go to the State Attorney’s Office to inspect the case file.

B. The incident of 19 December 2010

24. On 19 December 2010, at around 4.35 a.m., the police were informed that there was a fight in bar C. in Dubrovnik. Two police officers were immediately sent to the scene.

25. At the scene the police officers found several people, including the applicant and M.K., with visible injuries.

26. On the same date the applicant was examined by a doctor, who found that he had several cuts on his head and shoulder, which were characterised as minor bodily injuries.

27. The police also interviewed the applicant and several other people. The applicant stated that he had been drinking in bar C. with his friend M.K. At one point a man had approached them and head-butted the applicant for no reason. After that, several other people had started to throw glasses and bottles at the applicant and, after he had fallen to the floor, to kick him. He managed to escape from the bar but then he realised that he had left his t-shirt, shoes and necklace behind in the bar. He had therefore returned to search for his things but was again attacked by the same group, who continued throwing bottles and glasses at him and, once he had fallen to the floor, to kick him. He managed to escape from the bar again and was then attended to by the police and other emergency services.

28. On 22 December 2010 the police indicted the applicant and seven other people in the Dubrovnik Minor Offences Court (Prekršajni sud u Dubrovniku) on charges of breach of the public peace and order. There is no information on the outcome of these proceedings.

29. On 27 December 2010 the applicant asked for information concerning his case from the police on the grounds that he wanted to lodge criminal complaints before the domestic authorities and an application with the Court.

30. The police replied on 28 December 2010 and 12 January 2011 informing the applicant that he should submit his request for information to the Dubrovnik Minor Offences Court.

31. On 12 January 2011 the applicant again asked the police to provide him with all relevant documents in their possession, arguing that the police had been trying to cover up the attack, which he claimed had been perpetrated by the group from the Mokošica neighbourhood.

32. On the same date the police replied, reiterating their previous advice that the case file had been forwarded to the Dubrovnik Minor Offences Court.

33. On 16 March 2011 the applicant lodged a criminal complaint with the State Attorney’s Office against G.M., M.T. and P.S., alleging that they had attacked him and his friend M.K. in bar C. He pointed out that they were part of a group from the Mokošica neighbourhood and that he had already been attacked by individuals from the same group on 4 March 2008. However, there had been no response by the domestic authorities to this attack. Lastly, he stressed this was a group of “skinheads” which had been terrorising the whole city.

34. On 29 March 2011 the State Attorney’s Office invited the applicant for an interview and requested that the police provide all the information they had concerning the offence.

35. On 1 April 2011 the police replied that they had instituted minor offences proceedings in the Dubrovnik Minor Offences Court concerning the events in question.

36. On 13 April 2011 the State Attorney’s Office questioned the applicant and the record of his statement, together with the criminal complaint, was forwarded to the police on 14 April 2011 with an order for further investigation into the matter.

37. On 26 April 2011 the State Attorney’s Office questioned M.K., who confirmed the applicant’s version of events and described how he himself had also been attacked.

38. On 17 May 2011 the police reported to the State Attorney’s Office that they had questioned several people and were searching for other witnesses to the events.

39. On 19 May 2011 the State Attorney’s Office urged the police to speed up their work.

40. On 20 May 2011 the police submitted a report to the State Attorney’s Office.

41. On 30 May 2011 the State Attorney’s Office asked an investigating judge of the Dubrovnik County Court (Županijski sud u Dubrovniku) to conduct a judicial investigation concerning the applicant’s complaints.

42. In the period between 13 and 14 June 2011 the investigating judge questioned the applicant and several other individuals and commissioned a medical expert report concerning the applicant’s injuries.

43. The medical expert submitted his report on 14 July 2011. The relevant part of the report reads:

“The medical records indicate that Tomislav Remetin sustained cuts on the area of his left brow and right shoulder, and abrasions on the right elbow.

Each of these injuries itself and all the injuries taken together represent a minor bodily injury. ... ”

44. On 28 July 2011 the State Attorney’s Office rejected the applicant’s criminal complaint against P.S. on the grounds that there was no reasonable suspicion that he had committed any offence against the applicant. The applicant was instructed that he could take over the criminal prosecution against P.S. as subsidiary prosecutor.

45. On the same date, the State Attorney’s Office indicted G.M. and M.T. in the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) on charges of violent behaviour. The relevant part of the indictment reads:

“... on 19 December 2010, at around 3.00 a.m., in Dubrovnik, in bar C., based on a previous agreement, for no particular reason and in order to act violently, together with other unidentified persons, G.M. approached Tomislav Remetin, who was sitting at the bar, and head-butted and punched him several times on the head, after which M.T., together with other unidentified persons, continued to punch [Tomislav Remetin] all over his head and body, also throwing bottles and glasses at him, which made Tomislav Remetin leave the bar in fear, and after he had returned for his things, G.M. approached him again and punched him several times on the head, while other unidentified persons also started to punch and kick [Tomislav Remetin], and, after Tomislav Remetin fell to the floor, continued to hit him, which caused Tomislav Remetin [to suffer] cuts on the area of his left brow and right shoulder, and abrasions on the right elbow, which are minor bodily injuries, and subjected him to helplessness and feelings of anguish and inferiority ...”

46. On 1 September 2011 the president of the trial panel of the Dubrovnik Municipal Court to whom the case had been assigned asked the president of the Dubrovnik Municipal Court to exempt him from the case on the grounds of his friendship with the applicant’s father. The president of the court agreed to exempt him from the case on 9 September 2011.

47. On 19 June 2012 the Dubrovnik Municipal Court, in a separate set of proceedings, issued a penal order in respect of an individual, M.N., on charges of making death threats against the applicant with the aim of intimidating him to withdraw his criminal complaint. It would appear that these proceedings are still pending.

48. The first trial hearing before the Dubrovnik Municipal Court, scheduled for 22 January 2013, was adjourned due to the absence of a defence lawyer.

49. Another hearing, scheduled for 27 March 2013, was also adjourned because the applicant wished to retain a lawyer to represent him in the proceedings.

50. A further hearing was held on 26 June 2013 at which the trial court heard the applicant’s evidence and questioned another witness. It also commissioned a medical expert report.

51. The medical expert submitted his report on 1 August 2013. He found that the applicant had sustained a number of cuts on his face around the left eye and right shoulder, as well as abrasions of the right arm. He found no other objectively identified injuries.

52. According to the available information no further procedural actions were taken and the proceedings are still pending before the Dubrovnik Municipal Court.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic law

1. Constitution

53. The relevant provisions of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010) provide:

Article 23

“No one shall be subjected to any form of ill-treatment ...”

Article 35

“Everyone has the right to respect for and legal protection of his or her private and family life, dignity, reputation and honour.”

2. Criminal Code

54. The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008) provide:

Article 8

“(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney’s Office in the interest of the Republic of Croatia and its citizens.

(2) In exceptional circumstances the law may provide for criminal proceedings in respect of certain criminal offences to be instituted on the basis of a private prosecution or for the State Attorney’s Office to institute criminal proceedings following [a private] application.”

Article 35

“...

(3) Accomplices are two or more people who, based on a mutual decision, commit an offence, in that every one of them takes part in committing the offence or by other means decisively contributes to committing the offence.

(4) An instigator or aider and abettor is an accessory who, without control over the commission of the offence, contributes by instigation or aiding and abetting.”

Article 99

“(1) Anyone who inflicts grievous bodily harm on another or seriously impairs another’s health shall be sentenced to imprisonment for a term from six months to three years.

...

(4) An attempt to commit the offence under paragraph 1 of this Article shall also be punishable.”

Article 331

“(1) Whoever degrades another person by subjecting them to violent abuse, ill-treatment or particularly offensive behaviour in public shall be sentenced to imprisonment for a term from three months to three years.

(2) If the offence was committed as part of a group..., the perpetrator shall be sentenced to imprisonment for a term from six months to five years.”

3. Code of Criminal Procedure

55. 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; hereinafter the “1997 Code of Criminal Procedure”) provided:

Article 2

“(1) Criminal proceedings shall only be instituted and conducted upon the order of a qualified prosecutor. ...

(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences that may be prosecuted privately the qualified prosecutor shall be a private prosecutor.

(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.

(4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party may take his place as a subsidiary prosecutor under the conditions prescribed by this Act.”

56. Articles 47 to 61 regulated the rights and duties of private prosecutors and of injured parties acting as subsidiary prosecutors. A private prosecutor (privatni tužitelj) was an injured party who brought a private prosecution in respect of criminal offences for which such a prosecution was expressly allowed by the Criminal Code (these were offences of a lesser degree). An injured party acting as a subsidiary prosecutor (oštećeni kao tužitelj) was a person taking over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities, for whatever reason, had decided not to prosecute (Article 55). When acting as a subsidiary prosecutor, the victim had all rights in the proceedings which the State Attorney’ Office would have had as public prosecuting authority, save for those vested in the State Attorney’s Office as a state body.

Pursuant to Article 58, the State Attorney’s Office was authorised, on a discretionary basis, to take over a prosecution from a subsidiary prosecutor at any point before the end of the trial.

57. Relevant procedures concerning the submission of and decisions on criminal complaints were provided in Articles 171 to 174, the relevant parts of which read:

Article 171

“(1) All state bodies and legal entities are obliged to report any criminal offence subject to automatic prosecution about which they have been informed or about which they have otherwise learned.

...”

Article 173

“(1) Criminal complaints shall be submitted to the competent State Attorney in writing or orally.

...

(3) If a criminal complaint was submitted before a court, the police or a State Attorney who was not competent in the matter, they shall forward the criminal complaint to the competent State Attorney.”

Article 174

“(1) The State Attorney shall reject a criminal complaint by a reasoned decision if the offence in question is not an offence subject to automatic prosecution, if the prosecution is time-barred or an amnesty or pardon have been granted, or other circumstances excluding criminal liability or prosecution exist, or there is no reasonable suspicion that the suspect has committed the offence. The State Attorney shall inform the victim about his decision ... within eight days (Article 55) and if the criminal complaint was submitted by the police, he shall also inform the police.

(2) If the State Attorney is not able to ascertain the reliability of the submissions from the criminal complaint, or if he does not have sufficient information to ask for a judicial investigation, or if he has been otherwise informed that an offence has been committed, and particularly if the perpetrator is unknown, the State Attorney shall, if he is not able to do it himself, ask the police to collect all relevant information and to take other measures concerning the offence (Articles 177 and 179).

...”

58. Article 185 provided for urgent investigative actions in cases with an unknown perpetrator. The relevant parts of this provision read:

“(1) If the perpetrator is unknown, the State Attorney can ask the police to carry out certain investigative actions if, given the circumstances of the case, it would be expedient to take such actions before the investigation is opened. If the State Attorney considers that the investigative actions should be conducted by an investigating judge..., he shall ask the investigating judge to take such actions.

...”

59. On 18 December 2008 a new Code of Criminal Procedure was enacted (Official Gazette, nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012, 56/2013; hereinafter: the “2008 Code of Criminal Procedure”). The 2008 Code of Criminal Procedure fully came into force on 1 September 2011, but did not apply to criminal proceedings instituted under the 1997 Code of Criminal Procedure (see paragraph 55 above), for which that Code remained applicable.

60. Under the 2008 Code of Criminal Procedure, the position of the victim as a subsidiary prosecutor remained the same, in that she or he has the right to take over a prosecution from the State Attorney if the State Attorney has declined to prosecute, and may act in the proceedings with all the procedural rights which the State Attorney would have as a competent prosecutor. The State Attorney can take over a prosecution from a subsidiary prosecutor at any point before the end of the trial (Articles 55 and 58).

61. Judicial investigation was replaced by prosecutorial investigation, save for those situations in which a State Attorney had rejected the criminal complaint and the victim had taken over the prosecution as a subsidiary prosecutor. In the latter case, a subsidiary prosecutor retained the ability to ask the investigating judge to order an investigation or a hearing for the taking of evidence (Articles 219 § 1, 225 and 225).

62. An investigation may be conducted against a known or unknown perpetrator (Article 218 § 1). Under Article 213 § 2 a State Attorney may also, in cases in which an investigation is not mandatory (such as in the present case), carry out certain investigative actions which are expedient or necessary in the circumstances. Furthermore, Article 214 § 1 provides that a State Attorney, in cases where the perpetrator is unknown, may question witnesses if that would be expedient for of the identification of the perpetrator or if there is a risk that the evidence may vanish.

63. Further amendments to the 2008 Code of Criminal Procedure were introduced on 15 December 2013 (Official Gazette no. 145/2013). In so far as relevant for the case at issue, they excluded the possibility of opening the investigation against an unknown perpetrator (Article 217 § 1) but allowed for certain investigative actions to be taken in such cases (Article 214).

4. State Administration System Act

64. The relevant provision of the State Administration System Act (Zakon o sustavu državne uprave, Official Gazette nos. 75/1993, 92/1996, 48/1999, 15/2000, 127/2000, 59/2001, 199/2003, 79/2007), reads as follows:

Section 13

“Damage caused to a citizen, legal entity or any other party by an illegal or improper act on the part of a State administration body, local administration body or any legal entity with public powers in the exercise of its authority shall be redressed by the Republic of Croatia.”

B. Relevant practice

65. In its decision no. Kž-98/1993 of 23 September 1993, the Supreme Court (Vrhovni sud Republike Hrvatske) dealt with the problem of the responsibility of accomplices in a situation in which it was not clear which one of them actually committed the acts constituting the offence. The relevant part of the decision reads:

“... it is obvious that the deprivation of life occurred as a result of a series of actions taken by the accused in order to carry out that act. The Supreme Court therefore considers that the actions of the accused - shooting at the victim - was the proximate cause of the deprivation of life, which makes the accused B. and J. accomplices, irrespective of which one of them actually shot the victim.”

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 8 OF THE CONVENTION

66. The applicant complained of a lack of appropriate procedural response by the domestic authorities to the physical attacks against him on 4 March 2008 and 19 December 2010. He relied on Articles 3 and 8 of the Convention, which read as follows:

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.”

67. The Court finds, being the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I), that the domestic authorities’ procedural obligation related to the incidents at issue might arise under both Articles of the Convention relied upon, namely Articles 3 and 8. However, in order to avoid further analysis as to the issues pertinent to the threshold for the purposes of Article 3 of the Convention, the Court will analyse the circumstances of the present case from the standpoint of Article 8 of the Convention (compare A. v. Croatia, no. 55164/08, § 57, 14 October 2010).

A. Admissibility

1. Applicability of Article 8 of the Convention as regards the events of 4 March 2008

(a) The parties’ arguments

68. The Government submitted, referring to the Court’s judgments in the cases of Tonchev v. Bulgaria, no. 18527/02, 19 November 2009; Kulakov v. Ukraine (dec.), no. 12944/02, 16 November 2010; and Ilieva and Georgieva v. Bulgaria (dec.), no. 9548/07, 17 April 2012, that Article 8 of the Convention had not been applicable to the incident of 4 March 2008. The Government considered that at the time of the events in question the applicant had not been in a particularly vulnerable position, given that he had reached the age of majority, and that he had simply fallen victim to a brawl between two groups that took place in front of his school. The attack had not been directed towards the applicant personally and he had not sustained any serious injuries. This had been confirmed by the relevant medical documentation in the case file and the applicant had failed to substantiate his complaints that he had suffered mental distress.

69. The applicant contended that he had been seriously injured in the attack of 4 March 2008 and that he could have been killed on that occasion. He also submitted that the attack had left him with permanent damage to his physical and mental health.

(b) The Court’s assessment

70. The Court has previously held, in various contexts, that the concept of private life includes a person’s physical and psychological integrity. Under Article 8 States have a duty to protect the physical and moral integrity of an individual from other persons. To that end they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see X and Y v. the Netherlands, 26 March 1985, §§ 22 and 23, Series A no. 91; Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247-C; D.P. and J.C. v. the United Kingdom, no. 38719/97, § 118, 10 October 2002; M.C. v. Bulgaria, no. 39272/98, §§ 150 and 152, ECHR 2003-XII, and Sandra Janković v. Croatia, no. 38478/05, § 45, 5 March 2009). And such protection, in the context of attacks on the physical integrity of a person, should be ensured through the efficient criminal-law mechanisms (see X and Y v. the Netherlands, cited above, § 27; August v. the United Kingdom (dec.), no. 36505/02, 21 January 2003; and Sandra Janković, cited above, § 36).

71. The Court notes that according to the version of events established by the police, the applicant was hit on the head with a rock, causing him to suffer a minor bodily injury on his forehead, by a group of boys from the Mokošica neighbourhood who had come to the front of the applicant’s school in order to take revenge for a previous fight between a student from the applicant’s school and one of the boys from Mokošica (see paragraph 14 above). It has not been established that the applicant took part in throwing stones or otherwise provoked the event (compare, by contrast, Kulakov, cited above; and Ilieva and Georgieva, cited above, § 30). Upon his trying to leave the schoolyard together with other students the group started to throw rocks in their direction and one of the rocks hit him on the head, causing a three centimetre cut above his right brow bone and knocking him to the ground. He was taken inside the school by his friends and his injuries required immediate medical care.

72. In these circumstances, the Court finds that the incident in question, involving an attack on the applicant’s physical integrity, falls within the scope of the concept of “respect” for “private life” set forth in Article 8 of the Convention (see Sandra Janković, cited above, § 31).

73. Accordingly, the Court rejects the Government’s objection.

2. Compliance with the six-month time-limit as regards the events of 4 March 2008

(a) The parties’ arguments

74. The Government submitted that the applicant had learned on 18 May 2009 and 6 July 2009, when his father had been allowed access to the case file held by the State Attorney’s Office, that there had been no progress in the investigation into the event of 4 March 2008 and that it had been impossible to establish the identity of his attacker. However, he had lodged his application with the Court on 5 July 2011, namely two years later, and had therefore failed to observe the six-month rule.

75. The applicant made no observations in this respect.

(b) The Court’s assessment

76. The Court reiterates that the purpose of the six-month time-limit under Article 35 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see, for example, Worm v. Austria, 29 August 1997, §§ 32-33, Reports 1997-V).

77. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. However, where it is clear from the outset that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of. Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, the Court considers that it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date on which the applicant first became or ought to have become aware of those circumstances (see Keenan v. the United Kingdom (dec.), no. 27229/95, 22 May 1998, and Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).

78. The Court notes that on 23 May 2008 the applicant lodged a criminal complaint with the State Attorney’s Office concerning the attack against him on 4 March 2008, which is in principle an adequate and effective remedy as regards the duty to investigate and prosecute acts of violence (see, for example, Beganović v. Croatia, no. 46423/06, § 72-74, 25 June 2009, and M.S. v. Croatia, no. 36337/10, § 77, 25 April 2013). In the ensuing period he asked for information from the State Attorney’s Office and the police about his case on several occasions, urging them to take the necessary measures (see paragraphs 17-21 above).

79. This resulted in the State Attorney’s Office informing the applicant on 8 February 2011 that they had not identified the perpetrators of the attack and that the case was still being treated as a criminal complaint against an unknown perpetrator. The applicant lodged his application with the Court complaining about the procedural inactivity of the prosecuting authorities on 5 July 2011, namely within the six-month time-limit from the date on which he was made fully aware of the status of his case.

80. The Court therefore rejects the Government’s objection.

3. Exhaustion of domestic remedies

(a) The parties’ arguments

81. The Government submitted that the applicant had failed to lodge disciplinary and criminal complaints against the police officers and the State Attorney who had conducted the criminal investigation into the attacks against him, and that he had failed to lodge an action for damages against the State under the State Administration System Act.

82. The applicant considered that he had exhausted all domestic remedies.

(b) The Court’s assessment

83. The Court notes that in a number of cases against Croatia concerning the State’s procedural obligation to investigate acts of violence, it has already rejected the same objections raised by the Government in the case at hand (see Sandra Janković, cited above, §§ 35-36; Beganović, cited above § 56; Đurđević v. Croatia, no. 52442/09, § 67, ECHR 2011 (extracts); D.J. v. Croatia, no. 42418/10, §§ 63-65, 24 July 2012; and Remetin v. Croatia, no. 29525/10, §§ 73-77, 11 December 2012). It sees no reason to depart from this case-law in the present case.

84. Accordingly, the Court rejects the Government’s objection.

4. Abuse of the right of individual application

(a) The parties’ arguments

85. The Government argued that the applicant had not submitted before the Court authentic medical records issued on 4 March 2008 and 20 November 2008, and that he had submitted that his face had been deformed from the attack, which was untrue. In particular, the Government pointed out that the medical record of 4 March 2008 submitted by the applicant had not contained the text “took part in fighting” which had been stated on the original document; and that this record had contained the applicant’s photo, which had not been on the face of the original document. As to the medical record of 20 November 2008 submitted by the applicant, the Government pointed out that it had contained handwritten text and a sketch which the original document had not contained.

86. The applicant made no specific observations in this respect, but invited the Court in one of his submissions to request all relevant documents concerning his case from the domestic authorities.

(b) The Court’s assessment

87. The Court reiterates that an application may be rejected as abusive under Article 35 § 3 of the Convention, among other reasons, if it was knowingly based on misrepresentation or falsehood (see Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X, and Bagheri and Maliki v. the Netherlands (dec.), 30164/06, 15 May 2007).

88. The Court notes at the outset of its analysis in this regard that the changes made to the two medical records at issue are obvious modifications which could hardly mislead the Court into believing that they were originals, and in themselves were not able to support the applicant’s case. The Court notes in particular that a colour photo of the applicant was inserted into the medical record of 4 March 2008 - a style of picture which would not ordinarily be found in medical records. The text stating that the applicant took part in fighting has also been erased form that document. However, the applicant had already offered an explanation of how this text came to be erased in the initial stages of the domestic proceedings (see paragraph 10 above) and therefore it cannot be said that he was trying to conceal any essential information. In any event, given the police findings concerning the accident (see paragraph 14 above), the information that the applicant took part in the fighting does indeed appear to be incorrect. Similarly, the medical record of 20 November 2008 contains handwritten text and a sketch highlighting part of the x-ray of the applicant’s skull which is so obviously not part of the original document that the Court could not have been misled into accepting it. The Court is also mindful that the applicant has neither been prosecuted at the domestic level for forgery nor is there any indication that the competent domestic authorities gave any consideration to such possibility.

89. The Court accepts that there was nothing to prevent the applicant from making notes or drawings on his personal medical records. What is relevant for the Court is whether the applicant intentionally submitted or persisted in providing false information or otherwise misleading the Court, which cannot be ascertained in the present case. As to the claim that the applicant’s face was deformed, the Court considers that this is a part of the dispute between the parties about the incident and its consequences which could be a matter of personal perception. As such, it is open for the parties to argue this point and thus for the Court to accept or reject their submissions, but it cannot be considered that claims in this regard constitute knowingly misleading or lying to the Court.

90. Against the above background the Court considers that the Government’s objection must be rejected.

5. Conclusion

91. The Court notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

(a) The applicant

92. The applicant submitted that he had been attacked twice by the same group of hooligans from the Mokošica neighbourhood, although this had occurred in two separate incidents. As to the first attack that took place on 4 March 2008, he pointed out that the domestic authorities had not taken any steps to prosecute and punish the perpetrators for more than five years, although the police report had indicated that the domestic authorities had been well aware of their identities. The police and the school administration had failed to take the necessary measures to protect students from physical assault. Moreover, the police had not taken all necessary measures after the attack to investigate the circumstances in which it had occurred: they had not questioned any witnesses, lodged criminal complaints with the State Attorney’s Office or instituted minor offences proceedings in the Minor Offences Court. The State Attorney’s Office had done nothing to investigate the attacks and after five years there was the possibility that the prosecution could become time-barred. Had the State Attorney’s Office considered that there was no reason to institute proceedings, it should have dismissed his complaint and allowed him to prosecute the matter himself as a subsidiary prosecutor. As to the attack of 19 December 2010, the applicant pointed to the significant delays in scheduling hearings before the Dubrovnik Municipal Court and asserted that he had been threatened by one of the Mokošica group with the aim of making him withdraw his criminal complaint.

(b) The Government

93. As regards the incident of 4 March 2008, the Government argued that the police had acted promptly and diligently in response to the information that a fight was planned to take place in front of the Naval High School. Nothing from the applicant’s statement at the time had indicated a violent attack against him and therefore the domestic authorities had only taken further steps when the applicant had lodged his criminal complaint. Although the police had taken all necessary investigative steps, they had been unable to identify the exact person who had attacked the applicant, which had been crucial in this case. There had been no delays in the course of the investigation and the State could not be held responsible for not identifying every offender. The applicant had been allowed access to the case file but he had failed to appear on 14 July and 19 August 2011 to inspect and copy the case file. As regards the applicant’s complaint that he had not been able to take over the prosecution, the Government pointed out that the applicant, just like the State Attorney, could not prosecute an unknown perpetrator. On the other hand, given that the applicant had complained that this had been a deliberate attack against him, the prosecution could not have been instituted without identifying the specific perpetrator who had thrown a rock at the applicant.

94. The Government further contended that the domestic authorities had acted diligently in connection with the attack of 19 December 2010. They had taken all necessary investigative steps and had indicted two individuals in the competent criminal court only eight months after the incident. A criminal complaint against a third suspect had been rejected and the applicant had had every opportunity to pursue the prosecution as a subsidiary prosecutor had he considered it appropriate. He had been allowed to effectively participate in the proceedings and it had been his responsibility to use that right diligently. Nothing in the case file suggested any irregularity in the work of the State Attorney’s Office or the Dubrovnik Municipal Court. Lastly, the Government considered that the applicant’s arguments as to the existence of an organised group from the Mokošica neighbourhood had been misplaced and unsubstantiated. Such a group had existed in the 1990s but there was no evidence that it was still active. It was true that the criminal prosecution had been pending against M.N. for making death threats against the applicant with the aim of intimidating him to withdraw his criminal complaint, but the Government considered that it had not been sufficient evidence that the applicant had been attacked by an organised group.

2. The Court’s assessment

(a) General principles

95. The acts of violence such as those alleged by the applicant require the States to adopt adequate positive measures in the sphere of criminal-law protection. Where attacks on one’s physical integrity come from a private individual, the Convention does not necessarily require State-assisted prosecution against the attacker in order to secure the applicant’s Convention rights (see Sandra Janković, cited above, § 50). Thus, in such instances, it is conceivable under the Convention that the domestic law afford the applicant a possibility to pursue the prosecution of his attacker, either as a private prosecutor or as the injured party in the role of a subsidiary prosecutor (see M.S., cited above, § 75).

96. In each case, however, irrespective whether the prosecution remained at the hands of the domestic authorities (see, mutatis mutandis, Otašević v. Serbia, no. 32198/07, § 25, 5 February 2013) or the applicant has availed himself of the possibility to pursue the prosecution of his attacker, the Court must examine the effectiveness and the manner in which the relevant criminal-law mechanisms were implemented (see Sandra Janković, cited above, § 50; and M.S., cited above, § 75; and, mutatis mutandis, V.D. v. Croatia, no. 15526/10, § 53, 8 November 2011; Butolen v. Slovenia, no. 41356/08, § 70, 26 April 2012; and Otašević, cited above, §§ 34-37).

(b) Application of these principles to the present case

97. The Court notes that there is no evidence before it that the domestic authorities, notably the police and the school administration, failed to take measures to protect the applicant from the physical attack by a group of boys from the Mokošica neighbourhood, of which they knew or ought to have known at the time of the events (see, for example, Van Colle v. the United Kingdom, no. 7678/09, § 108, 13 November 2012 and cases cited therein). Moreover, it observes that as soon as the police was informed of the possible fighting in front of the school, they immediately arrived at the scene but at that time there was no fighting going on (see paragraphs 6 and 7 above).

98. Thus the Court considers that the present case concerns the domestic authorities’ procedural response to two acts of violence against the applicant, both allegedly performed by a group of boys from the Mokošica neighbourhood of Dubrovnik. Since the attacks took place on different dates and at different locations the Court considers that it should approach them separately.

99. However, given that, according to the Government, the domestic authorities were aware that a group of hooligans from Mokošica had existed in Dubrovnik in 1990s, in the light of certain aspects of the circumstances of the present case, such as the police report of 2 July 2008 which referred to the applicant’s attackers as a “group of boys from Mokošica” (see paragraph 14 above) and the fact that criminal proceedings are pending against an individual who made death threats against the applicant with the aim of intimidating him to withdraw his criminal complaints (see paragraph 47 above), the Court will be particularly mindful in assessing the adequacy of the domestic authorities’ procedural response to the violent attacks against the applicant, and the necessity to achieve effective protection and deterrence of violent acts when the allegations have been made that they were a result of organised hooliganism.

(i) The incident of 4 March 2008

100. The Court notes, as regards the criminal-law mechanisms provided in the Croatian legal system, that it found in the Sandra Janković case (cited above) that violent acts committed by private individuals are prohibited in a number of separate provisions of the Croatian Criminal Code (see paragraph 54 above).

101. Furthermore, as to the criminal law sphere, the Croatian legislation distinguishes between criminal offences to be prosecuted by the State Attorney’s Office, either of its own motion or upon a private application, and those to be prosecuted by means of a private prosecution. The latter category concerns criminal offences of a lesser nature. Thus, prosecution in respect of the criminal offences of violent behaviour, alleged by the applicant, is to be undertaken by the State Attorney’s Office, of its own motion (see paragraphs 54 and 55 above).

102. The Croatian legal system also envisages the possibility of the injured party acting as a subsidiary prosecutor. In respect of criminal offences for which the prosecution is to be undertaken by the State Attorney’s Office, either of its own motion or upon a private application, where the Office declines to prosecute on whatever ground, the injured party may take over the prosecution as a subsidiary prosecutor (see paragraph 56 above). Thus, a requirement of providing criminal law mechanisms in respect of violent acts by private parties has been satisfied.

103. However, providing an appropriate legal framework for protecting the individuals from the violent attacks on their personal integrity is not sufficient. The Court will next examine whether or not the impugned regulations and practices, and in particular the domestic authorities’ compliance with the relevant procedural rules, as well as the manner in which the criminal-law mechanisms were implemented in the instant case, were defective to the point of constituting a violation of the respondent State’s positive obligations under Article 8 of the Convention (see Sandra Janković, cited above, § 51).

104. The Court notes that on the day of the incident the police were informed that a mass fight was planned in front of the Naval High School. After having intervened at the scene, the police officers found the applicant with an injury on his forehead, caused by a rock thrown by a group of boys from Mokošice at the direction of the applicant and other students who were trying to leave the schoolyard. The applicant’s injury required immediate medical care (see paragraphs 6-8 above).

105. Although the available information concerning the incident suggested an act of violent behaviour punishable under the Criminal Code (see paragraph 54 above), the police took no further action concerning the event, such as attempting to identify potential eyewitnesses, nor did they inform the State Attorney’s Office of the incident and seek further instructions. Instead, the first investigative actions were only carried out in June 2008, namely three months later, after the applicant lodged a complaint with the State Attorney’s Office.

106. In this respect, the Court reiterates that a requirement of promptness and reasonable expedition is an implicit and essential requirement in the context of the State’s procedural obligation, which the period of three months of complete inactivity at the initial stages of this case does not meet (compare, mutatis mutandis, Denis Vasilyev v. Russia, no. 32704/04, §§ 101-102, 17 December 2009; and Mityaginy v. Russia, no. 20325/06, § 57, 4 December 2012).

107. Furthermore, the Court notes that after the State Attorney’s Office ordered the police to investigate the circumstances of the incident, they submitted a report on 2 July 2008 identifying a number of individuals who had belonged to the group that attacked the applicant (see paragraph 14 above). However, no further measures were taken afterwards, which amounts to six years of inactivity to date.

108. Although it is not the Court’s task to instruct the domestic authorities as to the measures which should have been taken, or to decide on individual criminal-law liability (see, inter alia, Beganović, cited above, § 78), it cannot fail to observe that the domestic authorities never attempted to carry out any further measures, or to open any form of judicial investigation, in order to determine the liability of the identified individuals who had belonged to the group attacking the applicant.

109. In this respect the Court notes that the relevant domestic case-law regarding the responsibility of accomplices does not require that the exact individual who committed the act constituting an offence be established (see paragraph 65 above). It is therefore regrettable that the Government have continued to assert that the authorities’ inability to conduct further investigation and a prosecution in the present case was to be explained by the failure to identify the exact perpetrator who threw a rock at the applicant (compare Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 118, 3 May 2007), without justifying that assertion through an examination by the competent authorities of the potential for them to apply that case-law in the present case.

110. Having said that, the Court also notes that domestic law provided for the possibility of taking judicial investigative actions under the 1997 Code of Criminal Procedure, or prosecutorial, and in some instances, judicial investigative actions under the 2008 Code of Criminal Procedure in order to advance criminal investigations into the offences committed by unknown perpetrators (see paragraphs 58, 62 and 63 above). However, any such actions, as already noted, have never been taken in the present case.

111. This inactivity on the part of the State Attorney’s Office also prevented the applicant from taking over the investigation as a subsidiary prosecutor, or a private prosecutor as the case might be, and consequently denied him the ability to bring proceedings before a court of competent jurisdiction. The situation is still unclear for the applicant to take over the prosecution, as the State Attorney’s Office has not yet taken a decision to dismiss the complaint (see Jasar v. “the former Yugoslav Republic of Macedonia”, no. 69908/01, § 59, 15 February 2007).

112. Although it is primarily for the prosecuting authorities to investigate and prosecute the attack against the applicant, the Court would reiterate that where domestic law affords the applicant the ability to pursue a prosecution of his attacker, either as a private prosecutor or as the injured party in the role of subsidiary prosecutor, and the applicant avails himself of this possibility, the Court will examine the effectiveness and the manner in which the criminal-law mechanism was implemented (see M.S. v. Croatia, cited above, § 75; and, mutatis mutandis, Otašević, cited above, §§ 25 and 34-37, 5 February 2013). Thus, had the domestic authorities taken the necessary measures allowing the applicant to pursue his criminal complaint before the competent courts, and if the ensuing court proceedings showed to be effective, that could have satisfied the State’s procedural obligation under the Convention (compare Otašević, cited above, §§ 34-37). In any event, they have failed to do so although in that case it would always remain open for the prosecuting authorities to take over the prosecution from the applicant if they considered it appropriate and necessary (see paragraphs 56 and 60 above).

113. The foregoing considerations disclose, in the Court’s view, a series of serious shortcomings in relation to the domestic authorities’ procedural obligations under the Convention as regards the violent attack against the applicant of 4 March 2008.

(ii) The incident of 19 December 2010

114. The Court notes that in relation to the events of 19 December 2010, when the applicant was attacked by a group in a bar, the police immediately responded at the scene and interviewed several people (see paragraphs 24-27 above).

115. However, although the applicant’s allegations, supported by the injuries he had sustained, suggested a violent attack against his physical integrity, the police never informed the State Attorney’s Office of the event or sought further instructions (see paragraph 57 above; Articles 171 and 173 of the 1997 Code of Criminal Procedure).

116. The investigation was resumed only in April 2011, namely five months later, after the applicant complained to the State Attorney’s Office (see paragraph 36 above). In this respect the Court can only reiterate its above findings concerning the same problem of police inactivity already observed in relation to the attack of 4 March 2008 (see paragraph 105 above).

117. The Court notes that the further police activities ordered by the State Attorney’s Office resulted in a judicial investigation before an investigating judge of the Dubrovnik County Court, and eventually on 28 July 2011 an indictment being brought against two people in the Dubrovnik Municipal Court on charges of their violent behaviour against the applicant (see paragraphs 41 and 45 above).

118. The first trial hearing was scheduled for 22 January 2013 - almost a year and a half after the indictment was lodged and more than two years after the incident (compare, mutatis mutandis, Fırat Can v. Turkey, no. 6644/08, § 45, 24 May 2011) - only to be adjourned again. In the meantime, the Dubrovnik Municipal Court did not conduct any relevant procedural activity. The Government has not provided any explanation for such a protracted course of proceedings. It is true that a trial judge asked the president of the court to be exempted from sitting on the case on 1 September 2011, but this can hardly justify such a long period of inactivity.

119. Furthermore, the Court notes that although certain procedural actions have been taken in the period between June and August 2013, when the medical expert submitted his report, the proceedings again came to a standstill and, according to the available information, no further actions have been taken to date (see paragraphs 50-52 above).

120. The result of this conduct on the part of the domestic authorities is that, more than three years after the applicant was attacked, those responsible have still not been ascertained and held accountable. In such circumstances, the Court concludes that the authorities have failed to comply with the requirement of promptness implicit in the procedural obligation to prosecute acts of violence under the Convention (see, mutatis mutandis, Artyomov v. Russia, no. 14146/02, § 179, 27 May 2010).

121. Accordingly, all the above circumstances make it sufficient for the Court to conclude that the domestic authorities failed in their obligation to effectively and expeditiously respond to the allegations of violence against the applicant (compare, mutatis mutandis, Angelova and Iliev v. Bulgaria, no. 55523/00, § 103, 26 July 2007; Şandru and Others v. Romania, no. 22465/03, § 78, 8 December 2009; and Artyomov, cited above, § 179).

(iii) Conclusion

122. In the Court’s view, the impugned practices in the circumstances of the present case did not provide adequate protection to the applicant against attacks on his physical integrity and showed that the manner in which the criminal-law mechanisms were implemented in the instant case were defective to the point of constituting a violation of the respondent State’s procedural obligations under Article 8 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

123. Lastly, the applicant cited Articles 6, 13 and 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, without providing any further relevant substantiation but merely reiterating his previous arguments.

124. 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 the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded, and must be rejected pursuant to Article 35 § 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

125. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

126. The Court notes that the applicant failed to submit a claim for just satisfaction or for costs and expenses under Rule 60 of the Rules of Court and as requested by the Court. Accordingly, the Court considers that there is no call to award him any sum on that account (see Trifković v. Croatia, no. 36653/09, § 146, 6 November 2012).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints about the alleged lack of appropriate procedural response by the domestic authorities concerning the physical attacks against the applicant on 4 March 2008 and 19 December 2010, under Article 8 of the Convention, admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of the procedural aspect of Article 8 of the Convention;

3. Holds that there is no call to award the applicant just satisfaction.

Done in English, and notified in writing on 24 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro-Lefèvre Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> REMETIN v. CROATIA (NO. 2) - 7446/12 - Chamber Judgment [2014] ECHR 841 (24 July 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/841.html Cite as: [2014] ECHR 841