STARCEVIC v. CROATIA - 80909/12 - Chamber Judgment [2014] ECHR 1215 (13 November 2014)

In the case of Starčević v. Croatia,

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

          Isabelle Berro-Lefèvre, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Linos-Alexandre Sicilianos,
          Erik Møse,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 21 October 2014,

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

PROCEDURE

1. The case originated in an application (no. 80909/12) 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 Mario Starčević (“the applicant”), on 11 October 2012.

2. The applicant was represented by Mr I. Babić, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant alleged, in particular, ineffective of the procedure before the domestic authorities concerning the death of his father.

4. On 3 June 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1974 and lives in Split.

6. On 17 May 2004 the applicant’s father was hit by a car while attempting to cross a motorway. He suffered serious bodily injury and died at the scene.

7. On the same day the Split Police Department (Policijska uprava Splitsko-dalmatinska) interviewed two witnesses and the driver of the car, Z.K. The police also carried out the necessary tests to measure Z.K.’s alcohol level, which showed that he had been intoxicated at the time of the accident.

8. The police informed an investigating judge of the Split County Court (Županijski sud u Splitu) of the accident. Later that day the investigating judge, assisted by a road traffic expert, carried out an on-site inspection.

9. On 18 May 2004 the road traffic expert submitted his report to the investigating judge, finding that in crossing the motorway the applicant’s father had caught the driver of the car by surprise, which had caused the accident.

10. On 19 May 2004 the investigating judge obtained a medical report concerning the applicant’s father, indicating that he had been intoxicated at the time of the accident.

11. Meanwhile, the case file was forwarded to the Split Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Splitu - “the State Attorney’s Office”) for its assessment of the relevant facts.

12. On 18 June 2004 the State Attorney’s Office obtained a medical report confirming that the driver of the car Z.K. had been under the influence of alcohol at the time of the accident.

13. On 20 December 2004 the State Attorney’s Office asked the investigating judge of the Split County Court to open an investigation in respect of Z.K. on suspicion of causing a road accident resulting in death.

14. Before deciding on that request, the investigating judge questioned Z.K. on 19 January 2005. He denied the charges, arguing that when the applicant’s father had crossed the motorway he had been caught by surprise, and had had no way of avoiding the accident.

15. On 7 February 2005 the investigating judge declined to open the investigation on the grounds that there was no reasonable suspicion that a criminal offence had been committed. This was upheld by a three-judge panel of the Split County Court on 22 February 2005.

16. The case file was then returned to the State Attorney’s Office, which was informed of its right to appeal against the decision of the Split County Court. There is no evidence before the Court that the applicant was informed of this decision.

17. The State Attorney’s Office decided not to appeal. There is no evidence before the Court that the applicant was informed of this decision.

18. On 16 June 2006 the applicant inquired with the Split County Court about the progress of the case. He indicated that the last information he had received had been the on-site inspection report. He explained that he had been away for a while, so if any new documents had been forwarded to him it was possible that he had not received them.

19. On 3 July 2006 the investigating judge of the Split County Court informed the applicant that the investigation into the circumstances of his father’s death had been discontinued.

20. On 7 July 2006 the applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) against the Split County Court’s decision refusing to open the investigation into the accident.

21. On 19 September 2006 the Supreme Court allowed the applicant’s appeal and ordered the investigation. The Supreme Court held that the Split County Court’s conclusion had been premature, since several crucial facts concerning the accident had remained unanswered. It therefore instructed the investigating judge to question witnesses and to take whatever further investigative measures which were necessary, such as a reconstruction of events.

22. On 16 November 2006 the investigating judge questioned two witnesses and concluded the investigation. He also informed the applicant that he could, if he considered it appropriate, indict Z.K. in the criminal courts on charges of causing a road accident.

23. On 24 November 2006 the applicant, acting as a subsidiary prosecutor and through his lawyer, lodged a request to prosecute with the Split Municipal Court (Općinski sud u Splitu) against Z.K., on charges of causing a road accident resulting in the death of his father, punishable under Article 272 §§ 1 and 3 of the Criminal Code (see paragraph 41 below).

24. The first hearing scheduled for 6 December 2006 before a single judge of the Split Municipal Court was adjourned because the parties failed to appear, as they had not been properly summoned. The trial judge indicated that he would issue another written order for the next hearing.

25. Having received no subsequent summonses, on 21 October 2009, the applicant urged the Split Municipal Court to schedule a hearing, arguing that he had attempted to contact the court several times to ask it to expedite the proceedings.

26. At a hearing held on 3 December 2009 Z.K. pleaded not guilty and the hearing was adjourned. Two witnesses appeared at the hearing but were not questioned.

27. A further hearing scheduled for 15 February 2010 was adjourned because the investigating judge had failed to forward its case file to the Split Municipal Court.

28. At a hearing on 14 April 2010 the single judge of the Split Municipal Court questioned Z.K. again, who reiterated his not guilty plea. The judge also questioned the applicant and the two witnesses.

29. Another hearing was held on 18 June 2010, at which the trial judge questioned Z.K. and the expert witness.

30. On the same day the Split Municipal Court acquitted Z.K. on charges of causing the road accident.

31. The applicant lodged an appeal with the Split County Court, which on 17 May 2011 quashed the first-instance judgment because of the procedural errors in the composition of the trial court. The relevant part of the judgment reads:

“... the first instance court did not sit in a proper formation because the trial was held before a single judge instead before a panel composed of a judge and two lay judges. The offence under Article 272 §§ 1 and 3 of the Criminal Code is punishable by imprisonment between one and ten years, and under Article 18 §§ 1 and 2 of the Code of Criminal Procedure for the offences punishable by imprisonment of more than five years, the Municipal Courts must sit in panels composed of a judge and two lay judges. ...

It should be also noted that for the offence under Article 272 §§ 1 and 3 of the Criminal Code, that is in issue in the present case, because of the prescribed penalty, the trial should be held according to the rules of ordinary, and not summary, procedure, and that such [ordinary criminal] proceedings can be held only on an indictment, against which the accused has the right to lodge an objection, and not based on a request to prosecute.”

32. In the resumed proceedings, on 15 September 2011 the Split Municipal Court asked the applicant to specify whether he had submitted an indictment (optužnica) or a request to prosecute (optužni prijedlog). The relevant part of the letter reads:

“In accordance with Article 269 § 2 of the Code of Criminal Procedure the submission named [request to prosecute] is being returned to the [subsidiary] prosecutor for amendment in accordance with Article 268 § 1 (6) of the Code of Criminal Procedure. That is to say, the subsidiary prosecutor must indicate whether or not his submission is actually an indictment.”

33. The applicant replied on 28 September 2011 indicating that his submission was an indictment rather than a request to prosecute.

34. On 30 November 2011 the Split Municipal Court discontinued the proceedings on the grounds that the applicant’s indictment had not been drafted properly, as it did not contain the statement of reasons on which it was based. The relevant part of this decision reads:

“The subsidiary prosecutor on 24 November 2006 submitted a request to prosecute against the accused Z.K. ....

Under Article 269 § 2 of the Code of Criminal Procedure such submission, titled request to prosecute, was returned to the [subsidiary] prosecutor for amendment under Article 268 § 1 (6) of the Code of Criminal Procedure.

The representative of the subsidiary prosecutor submitted before this court his amendment of the [above-noted document] indicating that the title “request to prosecute” should be changed to “indictment”, and that he had no other amendments.

Since the [subsidiary] prosecutor failed to comply with Article 268 § 1 (6) of the Code of Criminal Procedure (a statement of reasons describing the circumstances of the case after the investigation, indicating the evidence necessary to determine the relevant facts, presenting the defendant’s defence and the prosecutor’s position on the defendant’s defence), this court decided [to discontinue the proceedings].”

35. The applicant lodged an appeal on 9 December 2011 with the Split County Court, contending that he had only been invited to indicate whether he had instituted the proceedings by a request to prosecute or an indictment and that he had replied to that question accordingly. He also pointed out that the courts had accepted his indictment in 2006, conducted the proceedings and decided the case on the merits. Together with the appeal, the applicant submitted an amended indictment containing the statement of reasons.

36. On 17 April 2012 the Split County Court dismissed the applicant’s appeal as ill-founded, endorsing the reasoning of the Split Municipal Court.

37. On 16 May 2012 the Split Municipal Court ordered the applicant to pay Z.K.’s legal costs and expenses in the amount of 17,500 Croatian kunas. This decision was upheld by the Split County Court on 11 June 2012.

38. Also on 11 June 2012 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) regarding the manner in which the criminal law mechanisms had been implemented in his case.

39. On 20 September 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the decisions of the lower courts did not concern the applicant’s civil rights or obligations or any criminal charge against him.

II. RELEVANT DOMESTIC LAW

A. Constitution

40. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010 and 85/2010) provides:

Article 21

“Every human being has the right to life.

...”

B. Criminal Code

41. The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003 and 190/2003) provides:

Causing a road accident

Article 272

“(1) Road users who, by violating road safety regulations, endanger other road users in such a manner that they cause an accident in which another sustains serious bodily injury or extensive material damage shall be punished by a term of imprisonment of between six months and five years.

...

(3) If the offence referred to in paragraph 1 of this Article results in the death of one or more persons, the perpetrator shall be punished by a term of imprisonment of between one and ten years.”

C. Code of Criminal Procedure

42. 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) read:

Head II - Jurisdiction of Courts

1. Material jurisdiction and composition of courts

Article 18

“(1) The municipal courts shall hear cases in the panels composed of a judge and two lay judges.

(2) For the offences punishable by a fine or five years’ imprisonment, a single judge of the municipal court shall be competent to hear the case ... “

5. Conflict of jurisdiction and its consequences

Article 33

“(1) The court shall observe its material and territorial jurisdiction, and, as soon as it finds that it has no jurisdiction, it shall declare its lack of jurisdiction and, when that decision becomes final, it shall forward the case to the competent court.

...”

Head V - Victim and Private Prosecutor

Article 55

“(1) Where the State Attorney finds no grounds to prosecute ... it shall notify the injured party within eight days and inform that party of their right to take over the prosecution.

...

(5) When the State Attorney or the court informs the injured party of their right to take over the prosecution they shall also provide instructions regarding the measures to be taken to pursue that right.”

Head VII - Submissions and Records

Article 71

“(1) ... indictments [and] requests to prosecute ... shall be submitted in writing unless otherwise provided by law.

(2) The submissions referred to in paragraph 1 shall be comprehensible and contain the necessary information for the authorities to act upon them.

(3) Unless otherwise provided in this Act, the court conducting the proceedings shall invite a person who has made submissions which do not contain the necessary information or are incomprehensible to supplement them. Where the submissions have not been amended as required, the court shall declare them inadmissible.”

Head XVII - Investigation

Article 190

“(2) If the investigating judge does not agree with the State Attorney’s request for the opening of an investigation, he or she shall ask a panel of judges from the county court (Article 20 § 2) to issue a decision. The parties and the injured party may lodge an appeal against that decision which shall not have suspensive effect. If only the injured party lodged an appeal and that appeal is allowed, it shall be considered that by lodging the appeal the injured party took over the proceedings.”

Head XX - Indictment and Objection against the Indictment

Article 267

“(1) After the investigation, or if the investigation under this Code is not mandatory (Article 191), the proceedings before the competent court shall be conducted only on the basis of an indictment [made by] the State Attorney or the subsidiary prosecutor.”

Article 268

“(1) An indictment shall contain:

(1) the first name and surname of the defendant ...;

(2) a statement of facts constituting the offence ...;

(3) the statutory classification of the offence together with the provisions of the Criminal Code which should be applied;

(4) an indication of the court before which the trial shall be held;

(5) the proposal to take evidence ...;

(6) a statement of reasons describing the circumstances of the case after the investigation, indicating the evidence necessary to determine the relevant facts, presenting the defendant’s defence and the prosecutor’s position on the defendant’s defence.”

Head XXVI - Summary proceedings

Article 430

“In proceedings before the municipal court for offences punishable by a fine or a term of up to five years’ imprisonment, the provisions of Articles 431 to 445 of this Code shall apply, and if something is not provided under those provisions, the other provisions of this Code shall apply.”

Article 431

“(1) Proceedings shall be instituted by a request to prosecute made by the State Attorney or the subsidiary prosecutor ...”

Article 434

“(1) The request to prosecute ... shall contain all the information contained in Article 268 § 1 (1) to (5) of this Code, a proposal to find the accused guilty under the law, as well as a proposal for a sentence to be applied.”

Article 435

“(1) On receipt of the request to prosecute ... the judge (the president of the panel or the single judge) shall first examine whether the court is competent, whether further investigative measures need to be taken, and whether there are reasons to reject the request to prosecute ...”

Article 442

...

(6) If the single judge during the proceedings finds that the charges concern a criminal offence which should be tried before a panel, he or she shall establish the panel and the hearing shall start again.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

43. The applicant complained about the manner in which the criminal law mechanisms had been implemented in the case concerning the death of his father. He relied on Article 2 of the Convention, which, in so far as relevant, provides as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life ...”

A. Admissibility

1. The parties’ arguments

44. The Government submitted that the applicant had failed to lodge a request for the protection of the right to a hearing within a reasonable time in connection with the proceedings before the Split Municipal Court. This would have allowed the higher court to expedite the proceedings and award appropriate compensation. However, at the domestic level the applicant had never complained about the inactivity of the competent courts. Moreover, he could have lodged complaints and a request for disciplinary action against the officials from the State Attorney’s Office had he considered their actions irregular or unlawful, but he had failed to avail himself of that remedy.

45. The applicant contended that he had sufficiently brought all his complaints before the competent domestic authorities and had thereby properly exhausted domestic remedies. He emphasised that the ineffectiveness of the domestic proceedings was more than an issue of length, as the domestic courts had manifestly failed to act with sufficient diligence, which they had been obliged to do in a case concerning the deprivation of life of an individual. Thus, in his view, the functioning of the domestic system as a whole had been at issue in his case. Lastly, he pointed out that the State Attorney’s Office, as a hierarchical body with strong internal governance, had had every opportunity to react to the irregularities in the conduct of the proceedings.

2. The Court’s assessment

46. The Court reiterates that, under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of resolving directly the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004).

47. As to the Government’s arguments concerning the exhaustion of domestic length-of-proceedings remedies, the Court reiterates that it has already held that such remedies are insufficient in cases in which the obligation to elucidate the circumstances of an individual’s death is in question, as it is not merely the length of the proceedings which is at issue, but the question whether in the circumstances of the case seen as a whole the State could be said to have complied with its procedural obligations under Article 2 of the Convention (see Šilih v. Slovenia [GC], no. 71463/01, §§ 169-170, 9 April 2009).

48. Furthermore, as to the applicant’s ability to lodge complaints and disciplinary actions against the officials from the State Attorney’s Office, the Court reiterates that in several cases against Croatia concerning the State’s procedural obligations under the Convention, it has already rejected the objections raised by the Government to the same effect (see D.J. v. Croatia, no. 42418/10, §§ 63-65, 24 July 2012; Remetin v. Croatia, no. 29525/10, §§ 73-74, 11 December 2012; and Kudra v. Croatia, no. 13904/07, § 95, 18 December 2012). It sees no reason to depart from its case-law in the present case.

49. Against the above background, the Court rejects the Government’s objections. The Court also notes that the application 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

50. The applicant contended that the proceedings into the circumstances of his father’s death had been superficial, lengthy and ineffective. At the initial investigation stage the investigating authorities had never attempted to contact him until he had inquired about the progress of the case, and only then to inform him that the investigation had been discontinued. However, he had insisted on the investigation being carried out and the Supreme Court had accepted his arguments, ordering that it be reopened. After the investigation, he had been informed by the Split County Court of his right to take over the prosecution as a subsidiary prosecutor, but without any indication as to what he had been required to do, despite Article 55 of the Code of Criminal Procedure placing an obligation on the investigating judge to give him full instructions.

51. The applicant conceded that during the proceedings he had been represented by a lawyer, but that had not removed the obligation placed on the domestic authorities under the Code of Criminal Procedure to provide him with detailed instructions of how to pursue his case. Thus, it had already been incumbent on the trial court to verify the formal requirements of his indictment at the time of its submission, and it could not shift that burden on him. However, the trial court had failed to do this, and instead of clarifying the formal omissions at the very beginning of the trial had concluded the proceedings and decided the case on the merits. Only when the appellate court had quashed the first-instance judgment had the trial court invited him to amend his indictment, but merely indicating that he should reply whether he considered it “an indictment” or a “request to prosecute”. He had duly answered that question, but the trial court had not accepted his answer and the case had been discontinued. Furthermore, in his view, it had been primarily for the trial court to observe the procedural requirements of its composition and the formalities concerning the indictment. Its failure to do so had rendered the proceedings ineffective, as it had prevented the circumstances of his father’s death being elucidated.

(b) The Government

52. The Government submitted that the proceedings into the circumstances of the applicant’s father’s death had been effective and thorough, and that throughout the proceedings the domestic authorities had displayed sufficient diligence in their actions. The Government pointed out that it had only taken a month for the investigating authorities to complete the investigation, during which they had conducted all necessary investigative measures and established all relevant facts. However, until June 2006 the applicant had been away and therefore the domestic authorities could not inform him of the course of the proceedings. In the Government’s view, there had been nothing arbitrary in the decisions of the domestic authorities discontinuing the public prosecution, and the applicant had been given an adequate opportunity to pursue his case as a subsidiary prosecutor. The fact that the proceedings had later been discontinued had been the sole responsibility of the applicant. In this connection, the Government pointed out that the applicant had been represented by a lawyer who should have been aware of the relevant provisions of the Code of Criminal Procedure concerning the formal requirements of an indictment. However, the omission of the applicant’s lawyer to comply with these requirements had been rectified by the Split County Court’s decision of 17 May 2011 pointing to the formal errors in the indictment. When the applicant had been invited by the Split Municipal Court to amend his indictment, he had again failed to do so, despite the Split Municipal Court having relied in its letter on the provision containing the formal requirements of an indictment. In any event, had anything in the instructions of the domestic courts been unclear for the applicant, he could have sought the necessary clarification, which he had failed to do.

53. Furthermore, the Government considered that the protracted length of the proceedings had also been the applicant’s responsibility, as he had not acted diligently in the proceedings and had not asked the trial court to rectify the error in its composition. The final outcome of the case in which the domestic courts had never adopted a decision on the merits concerning the circumstances of the applicant’s father’s death had therefore been his responsibility and the responsibility of his lawyer, who had failed to submit an indictment complying with the relevant statutory requirements.

2. The Court’s assessment

(a) General principles

54. The Court reiterates that the first sentence of Article 2 of the Convention requires the States, in particular, to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life in context of any activity, whether public or not, in which the right to life may be at stake (see, amongst many other authorities, Zubkova v. Ukraine, no. 36660/08, § 35, 17 October 2013). In case of a life-threatening injury or death, the above obligation calls for an effective independent judicial system to ensure enforcement of the aforementioned legislative framework by providing appropriate redress (see, for example, Anna Todorova v. Bulgaria, no. 23302/03, § 72, 24 May 2011). This obligation also applies in the context of designing a framework for protection of life from road traffic accidents (see, for example, Al Fayed v. France (dec.), no. 38501/02, §§ 73-78, 27 September 2007; Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007; Railean v. Moldova, no. 23401/04, § 30, 5 January 2010). An effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law (see Cioban v. Romania (dec.), no. 18295/08, § 25, 11 March 2014) but if the infringement of the right to life is not intentional, Article 2 does not necessarily require such remedies; the State may meet its obligation by affording victims a civil-law remedy, either alone or in conjunction with a criminal-law one, enabling any responsibility of the individuals concerned to be established and any appropriate civil redress, such as an order for damages, to be obtained (see Anna Todorova, cited above, § 73).

55. In principle, States should have the discretion to decide how a system for the implementation of a regulatory framework protecting the right to life must be designed and implemented. What is important, however, is that whatever form the investigation takes, the available legal remedies, taken together, must amount to legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress. Any deficiency in the investigation, undermining its ability to establish the cause of the death or those responsible for it, may lead to the finding that the Convention requirements have not been met (see Antonov v. Ukraine, no. 28096/04, § 46, 3 November 2011).

56. A requirement of promptness and reasonable expedition is implicit in this context. Even where there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Šilih, cited above, § 195). Thus, in a number of cases before the Court concerning the implementation of a domestic regulatory framework for the protection of life from road traffic accidents, the finding of a violation was largely based on the existence of unreasonable delays and a lack of diligence on the part of the authorities in conducting the proceedings, regardless of their final outcome (see Anna Todorova, cited above, § 76; Antonov, cited above, §§ 50-52; Igor Shevchenko v. Ukraine, no. 22737/04, §§ 57-62, 12 January 2012; Sergiyenko v. Ukraine, no. 47690/07, §§ 51-53, 19 April 2012; Prynda v. Ukraine, no. 10904/05, § 56, 31 July 2012; and Zubkova, cited above, §§ 41-42).

(b) Application of these principles to the present case

57. The Court notes at the outset that the Government did not contend that the applicant could effectively pursue the matter outside the framework of the criminal proceedings. The Court will therefore confine itself to examining whether the criminal proceedings into the death of the applicant’s father satisfied the criteria of effectiveness required by Article 2 of the Convention (compare Antonov, cited above, § 49; Igor Shevchenko, cited above, §§ 57-62; Prynda, cited above, § 54; and Zubkova, cited above, § 38).

58. The Court observes that the road traffic accident resulting in the death of the applicant’s father occurred in May 2004 (see paragraph 6 above) and that the domestic proceedings into his death ended in September 2012 without a final determination of the case on the merits (see paragraph 39 above). Thus, the proceedings lasted for approximately eight years and four months, a period which in itself raises serious concerns as to the domestic authorities’ compliance with the requirement of promptness and reasonable expedition (see Anna Todorova, cited above, § 76; Igor Shevchenko, cited above, § 57; Sergiyenko, cited above, § 52; Prynda, cited above, § 56; and Zubkova, cited above, § 41).

59. The protracted length of proceedings resulted from a series of shortcomings in the domestic authorities’ handling of the case and several unexplained delays during the proceedings. Even though there was a certain lack of diligence on the part of the applicant, as suggested by the Government, the overall length of the criminal proceedings, while pending before the domestic authorities, does not appear to be justified (see Zubkova, cited above, § 41).

60. In this connection, the Court observes that after the initial investigation into the circumstances of the applicant’s father’s death, the proceedings were discontinued on 22 February 2005 when the Split County Court refused to open a further investigation into the matter (see paragraph 15 above). Although the investigating judge never questioned the witnesses to the event, the State Attorney’s Office decided not to challenge the decision on appeal (see paragraph 17 above). There is no evidence before the Court to suggest that any of these authorities ever attempted to notify the applicant of that decision (see paragraphs 16 and 17 above), although they were under such obligation under Articles 55 and 190 of the Code of Criminal Procedure (see paragraph 42 above). It is true that in his letter of 16 June 2006, in which he inquired about the progress of the proceedings, the applicant accepted that there was the possibility that he had not received information about the course of the proceedings because he had been away for a while (see paragraph 18 above). However, as there is no evidence before the Court that any attempt was made to serve the decision not to open the investigation on the applicant, the Court, noting that the guarantees of Article 2 of the Convention must be interpreted and applied so as to make their safeguards practical and effective and not theoretical and illusory (see, amongst many others, Banel v. Lithuania, no. 14326/11, § 62, 18 June 2013), cannot make a firm conclusion that in fact the applicant could not have been served with the decision had the domestic authorities ever attempted to do this at the relevant time.

61. When the applicant challenged the decision of the Split County Court on 7 July 2006, the Supreme Court found that the investigation had been incomplete and that further steps were required, such as the questioning of witnesses and a reconstruction of events (see paragraphs 20 and 21 above).

62. The Court further notes that after the applicant took over the prosecution as a subsidiary prosecutor by indicting Z.K. in the Split Municipal Court on 16 November 2006, save for an unsuccessful attempt of holding a hearing on 6 December 2006, there had been complete inactivity on the part of the trial court for a period of almost three years (see paragraphs 23-26 above). The Government provided no explanation for this, nor is there anything before the Court which could justify such a lack of diligence on the part of the trial court, incompatible with its obligations under Article 2 (compare Igor Shevchenko, cited above, § 58).

63. Although the proceedings could not be considered complex - the Split Municipal Court had to question only three witnesses, the applicant and the accused, for which two hearings were sufficient (see paragraphs 28 and 29 above; and compare Igor Shevchenko, cited above, § 60) - it took approximately three years and six months from the moment the applicant instituted the proceedings for the Split Municipal Court to adopt its first-instance judgment on the merits (see paragraphs 23 and 30 above).

64. However, in the further course of the proceedings and after the Split County Court had quashed the first-instance judgment, the Split Municipal Court realised that the applicant’s request to prosecute had not been in the appropriate format and that from the very beginning of the proceedings the case had not been dealt with in an appropriate judicial composition. Although it is true that the applicant had legal representation and that it was incumbent on his lawyer to know the relevant provisions of the domestic law on instituting the proceedings as a subsidiary prosecutor, the Court notes that a statutory obligation was placed on the Split Municipal Court, as the trial court, to verify the formal compatibility of the applicant’s indictment and to observe the jurisdiction of its composition at the very moment when the proceedings were instituted (see paragraph 42 above; Article 71 § 3 and Article 435 § 1 of the Code of Criminal Procedure; and Articles 18, 33 and 442 of the Code of Criminal Procedure). The Split Municipal Court failed to do this properly. It accepted the applicant’s request to prosecute although the proceedings could have been instituted only by an indictment and, in the improper single judge composition, adopted a judgment on the merits without ever questioning the relevant procedural requirements.

65. It was not until 15 September 2011, more than four years and nine months after the applicant’s request to prosecute had been lodged, that the Split Municipal Court, only after the instruction of the Split County Court, invited the applicant to amend the request to prosecute using such formulations which made it insufficiently clear what the applicant was actually required to do (see paragraph 32 above). The Split Municipal Court instructed the applicant to amend his request to prosecute in accordance with Article 268 § 1 (6) of the Code of Criminal Procedure (see paragraph 42 above) specifying its request stating that the applicant should indicate whether or not his submission was actually an indictment (see paragraph 32 above). When the applicant replied to the Split Municipal Court’s order in a manner he understood, namely indicating that his submission was in fact an indictment, the Split Municipal Court rejected it on the grounds that it had not been drafted properly (see paragraphs 33-34 above).

66. The Court could accept, as the Government suggested, that the applicant’s lawyer should have understood the Split Municipal Court’s order as a requirement that his indictment should contain a statement of reasons. It notes that the applicant attempted to rectify his omission by lodging such a statement with his appeal with the Split County Court (see paragraph 35 above). However, the Split County Court refused to accept the applicant’s amended indictment, upholding the decision terminating the proceedings on formal grounds (see paragraph 36 above).

67. In the circumstances in which the proceedings had already been pending for a considerable number of years due to a lack of diligence of the first-instance court and the parties to the proceedings were well aware of all the aspects of the charges and the case, this appears as an overly rigid formal approach.

68. In any event, the proceedings were finally discontinued after more than eight years, which suggests that the domestic authorities, faced with an arguable case of negligence resulting in death, failed to provide a timely response consonant with the State’s obligation under Article 2 of the Convention to provide an effective judicial system.

69. There has therefore been a violation of Article 2 of the Convention in its procedural limb.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

70. 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.”

A. Damage

71. The applicant claimed 28,000 euros (EUR) for mental suffering caused as a result of the ineffectiveness of the domestic proceedings, considering that this amount could be awarded as either pecuniary or non-pecuniary damage.

72. The Government considered the applicant’s claim excessive, unfounded and unsubstantiated.

73. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 10,000 plus any tax that may be chargeable on that amount in respect of non-pecuniary damage.

B. Costs and expenses

74. The applicant also claimed EUR 7,700 for the costs and expenses incurred before the domestic courts and before the Court.

75. The Government considered the applicant’s claim unfounded.

76. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 7,700 plus any tax that may be chargeable on that amount covering costs under all heads.

C. Default interest

77. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

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

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention,, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 7,700 (seven thousand seven hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 November 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 >> STARCEVIC v. CROATIA - 80909/12 - Chamber Judgment [2014] ECHR 1215 (13 November 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/1215.html Cite as: [2014] ECHR 1215