SECOND SECTION

DECISION

Application no . 51714/13 Slobodan ĐUROVIĆ against Croatia

The European Court of Human Rights (Second Section), sitting on 7 March 2017 as a Chamber composed of:

Işıl Karakaş , President, Julia Laffranque , Paul Lemmens , Valeriu Griţco , Ksenija Turković , Stéphanie Mourou-Vikström , Georges Ravarani , judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 1 August 2013,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Slobodan Đurović , is a Montenegrin national who was born in 1954 and is currently serving a prison sentence in Zagreb Prison. He was represented before the Court by Mr R. Mlinarić and Mr K. Vilajtovic , lawyers practising in Zagreb.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Å . Sta ž nik .

3. On 12 February 2015 the Government of Montenegro were informed of the case and invited to exercise their right to intervene if they wished to do so. On 27 July 2015 the Government of Montenegro informed the Court that they did not wish to exercise their right to intervene in the present case.

The circumstances of the case

4. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background to the case

5. On 23 October 2008 I.P., a well-known Croatian journalist, and his business associate N.F. were killed by the explosion of an improvised device placed under I.P. ’ s car, which was parked in front of his publishing company. The explosion also caused injuries to two employees of the publishing company and considerable material damage to the surrounding buildings and nearby parked cars.

6. The police immediately started enquiries into the above events and soon learned that a certain R.M., L.M. and A.M. were implicated and that an unknown person was supposedly aiding them in fleeing the country. It was therefore decided to arrest these individuals. The Police Chief ( Glavni Ravnatelj Policije ) issued an oral order that the arrests be carried out by an anti-terrorist team of the Special Police Force ( Specijalna policija , Antiteroristička jedinica Lučko – hereinafter “the ATJ”).

7. On 23 October 2009 the State Attorney ’ s Office for the Suppression of Corruption and Organised Crime ( Ured za suzbijanje korupcije i organiziranog kriminaliteta – hereinafter “the State Attorney ’ s Organised Crime Office”) indicted several individuals, including the applicant, before the Zagreb County Court ( Ž upanijski sud u Zagrebu ) on charges of conspiracy to kill I.P. and of carrying out the plan.

8. On 3 November 2010 the Zagreb County Court ( Ž upanijski sud u Zagrebu ) found the applicant guilty on the charge of incitement to conspiracy to commit aggravated murder and sentenced him to ten years ’ imprisonment. On 15 January 2013 the Supreme Court ( Vrhovni sud Republike Hrvatske ) upheld the applicant ’ s conviction, increasing his sentence to twenty-three years ’ imprisonment.

2. The applicant ’ s alleged ill-treatment by the police

9. On 29 October 2008, at 5.35 p.m., the ATJ arrested the applicant together with R.M. and L.M. at the Spa č va petrol station off the motorway near the town of Ž upanja .

10. According to the Government the three individuals concerned resisted arrest and force had to be used against them. Two members of the ATJ sustained injuries. The applicant also sustained injuries while a standard restraint technique was applied against him during the arrest.

11. According to the applicant, even though he was not resisting arrest, he was severely beaten by several police officers all over his head and body.

12. After being arrested the applicant was brought to the premises of the Criminal Police in Zagreb. There he received medical assistance at 5.20 a.m. on 30 October 2008 from an emergency medical team.

13. On 31 October 2008 the applicant was questioned by an investigating judge of the Zagreb County Court in the presence of two defence lawyers. He did not make any complaints about the conduct of the police.

14. On 1 November 2008, upon his admission to detention, the applicant was examined by a prison doctor who found that he had haematomas around both eyes and an abrasion on his face.

15. According to the applicant, in the further course of the proceedings he complained to the Zagreb County Court, the investigating judge, the State Attorney ’ s Office, the police and other authorities of the violence used against him during his arrest. However, he did not submit any documents supporting those allegations.

16. The documents submitted by the parties show that in a letter of 27 July 2011, addressed to the Office of the President of the Republic ( Ured Predsjednika Republike Hrvatske ) the applicant complained, inter alia , of alleged ill-treatment by the police during his arrest.

17. No investigation was ever opened in connection with the applicant ’ s allegations of ill-treatment.

18. On 21 September 2012 the applicant instituted civil proceedings against the State before the Zagreb Municipal Civil Court ( Op ć inski gra đ anski sud u Zagrebu ), claiming damages for his alleged ill-treatment by the police. It appears that these proceedings are still pending before the first-instance court.

19. In a constitutional complaint of 7 March 2013, lodged against the Supreme Court ’ s judgment of 15 January 2013 given in the criminal proceedings against him, the applicant alleged that the police officers had used force against him during his arrest and had caused him numerous bodily injuries. On 25 February 2015 the Constitutional Court found that these allegations, in so far as they were admissible and susceptible to be addressed within the Constitutional Court ’ s proceedings, did not reveal any violation of the applicant ’ s human rights and fundamental freedoms guaranteed by the Constitution.

COMPLAINT

20. The applicant complained under Article 3 of the Convention about his alleged ill-treatment by the police during his arrest.

THE LAW

Alleged violation of Article 3 of the Convention

21. The applicant complained of ill-treatment during his arrest and time in police custody, and of the absence of an effective investigation in that respect. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

1. The parties ’ arguments

22. The Government argued that the applicant had not complied with the six-month time-limit since his alleged ill-treatment had occurred in October 2008 whereas his application had been lodged with the Court on 1 August 2013, almost five years later, without an appropriate criminal complaint with the national authorities having been lodged. As regards the allegations of ill-treatment in the applicant ’ s constitutional complaint, the Government argued that these proceedings and the decisions of the Constitutional Court could not be the starting point for counting the six- m onth time-limit because the applicant had lodged his application with the Court even before the Constitutional Court had adopted a decision.

23. The Government maintained further that the applicant had not properly exhausted the available domestic remedies since he had not lodged a criminal complaint with the police or the State Attorney ’ s Office. When he had been questioned by an investigating judge of the Zagreb County Court on 31 October 2008, in the presence of two defence lawyers of his own choosing, the applicant had not made any allegations of ill-treatment during his arrest, which had occurred two days earlier.

24. The Government also argued that the applicant ’ s complaints were premature since the civil proceedings following his action for damages against the State were pending.

25. The applicant argued that the six-month time-limit should be calculated from the judgment adopted by the Supreme Court in the criminal proceedings against him.

26. As to the exhaustion issue, the applicant maintained that he had sent numerous complaints to various national authorities concerning his ill-treatment by the police during his arrest.

2. The Court ’ s assessment

27. The Court reiterates that the six-month time-limit provided for by Article 35 § 1 of the Convention has a number of aims. Its primary purpose is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other individuals concerned from being kept in a state of uncertainty for a long period of time (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 39, 29 June 2012, and El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 135, ECHR 2012).

28. 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 apprise 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; and Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08 , §§ 259-60, ECHR 2014 (extracts)).

29. The Court has already held that, in cases concerning an investigation into ill-treatment, the obligation of diligence incumbent on applicants contains two distinct but closely linked aspects: on the one hand, the applicants must contact the domestic authorities promptly concerning progress in the investigation – which implies the need to apply to them with diligence, since any delay risks compromising the effectiveness of the investigation – and, on the other, they must lodge their application promptly with the Court as soon as they become aware or should have become aware that the investigation is not effective (see Mocanu and Others , cited above, § 264).

30. The first aspect of the duty of diligence – that is, the obligation to apply promptly to the domestic authorities – must be assessed in the light of the circumstances of the case. In this regard, the Court has held that applicants ’ delay in lodging a complaint is not decisive where the authorities ought to have been aware that an individual could have been subjected to ill-treatment – particularly in the case of assault which occurs in the presence of police officers – as the authorities ’ duty to investigate arises even in the absence of an express complaint (see Velev v. Bulgaria , no. 43531/08, §§ 59 ‑ 60, 16 April 2013). Nor does such a delay affect the admissibility of the application where the applicant was in a particularly vulnerable situation, having regard to the complexity of the case and the nature of the alleged human rights violations at stake, and where it was reasonable for the applicant to wait for developments that could have resolved crucial factual or legal issues (see El Masri , cited above, § 142).

31. With regard to the second aspect of this duty of diligence – that is, the duty on the applicant to lodge an application with the Court as soon as he or she realises, or ought to have realised, that the investigation is not effective – the Court has stated that the issue of identifying the exact point in time that this stage occurs necessarily depends on the circumstances of the case and that it is difficult to determine it with precision (see Nasirkhayeva v. Russia ( dec. ), no. 1721/07, 31 May 2011). In particular, the Court has considered it indispensable that individuals who wish to bring a complaint about the ineffectiveness or lack of an investigation before the Court do not delay unduly in lodging their application. However, so long as there is some meaningful contact with the authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay by the applicants will not generally arise (see Mocanu and Others , cited above, § 269).

32. As regards the case at issue, the applicant alleged that he had been beaten by the police during his arrest on 29 October 2008. The applicant was treated for his injuries on 30 October and 1 November 2008 and the authorities therefore must have already become aware of a possibility of violence used against the applicant at that time. However, no investigation into the possible ill-treatment of the applicant ensued.

33. Whereas the Court acknowledges the applicant ’ s vulnerable position, it nevertheless notes that when the applicant was questioned by an investigating judge of the Zagreb County Court on 31 October 2008 in the presence of two defence lawyers of his own choosing, he made no complaints concerning the conduct of the police.

34. The applicant averred that he had sent numerous complaints to various authorities about his alleged ill-treatment by the police during his arrest. However, none of the documents submitted by the applicant contains such complaints, save for the one mentioned below. The applicant waited for two years and nine months before he brought his allegations of ill-treatment by the police to the attention of the authorities. The first time he complained of it was in a letter sent to the Office of the President of the Republic on 27 July 2011. That Office informed the applicant ’ s lawyer on 24 August 2011 that it had received his complaint.

35. Even though the applicant must have been aware that his allegations brought to the attention of the Office of the President of the Republic had not resulted in any concrete steps, he never lodged an official criminal complaint with any of the authorities about the alleged ill-treatment by the police (contrast with Mafalani v. Croatia , no. 32325/13, § 83, 9 July 2015) . Instead he waited for a further year and seven months when he repeated his allegations in a constitutional complaint lodged in the context of the criminal proceedings against him. Before that complaint was decided by the Constitutional Court, the applicant had lodged his application with the Court.

36. In these circumstances the Court considers that the applicant, who was represented by lawyers of his own choosing from his arrest, has not shown due diligence and taken steps to keep track of whether his allegations were being properly addressed. He did not lodge his application with due expedition once he had become, or should have become, aware of the lack of any effective criminal investigation.

37. As to the civil action for damages brought by the applicant against the State, the Court has repeatedly held that the procedural obligation of the State under Article 3 to conduct a thorough, official, effective and prompt investigation into allegations of ill-treatment cannot be substituted by payment of damages. The Court confirms that a civil action is not capable of making any findings as to the identity of the perpetrators and still less of establishing their responsibility. Furthermore, a Contracting State ’ s obligation under Article 3 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of ill-treatment might be rendered illusory if, in respect of complaints under that Article, an applicant were required to exhaust an action leading only to an award of damages (see Parlak and Others v. Turkey ( dec. ), nos. 24942/94, 24943/94 and25125/94, 9 January 2001; Okkalı v. Turkey , no. 52067/99, § 58, ECHR 2006 ‑ XII (extracts); Taymuskhanovy v. Russia , no. 11528/07, § 75, 16 December 2010; and V.D. v. Croatia , no. 15526/10 , § 49, 8 November 2011 ). T herefore , the civil proceedings instituted by the applicant do not affect the running of the six-month period (compare to Narin v. Turkey , no. 18907/02, § 48, 15 December 2009).

38. Accordingly, the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 March 2017 .

             Stanley Naismith Işıl KarakaÅŸ Registrar President