FIRST SECTION

DECISION

Application no . 19256/13 Marina VULETIĆ against Croatia

The European Court of Human Rights ( First Section ), sitting on 23 June 2015 as a Chamber composed of:

Isabelle Berro , President, Elisabeth Steiner , Khanlar Hajiyev , Mirjana Lazarova Trajkovska , Julia Laffranque , Ksenija Turković , Dmitry Dedov , judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 11 February 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, Ms Marina Vuletić , is a Croatian national, who was born in 1976 and lives in Zagreb . She was represented before the Court by Ms I. Bojić , a lawyer practising in Zagreb .

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

A. The circumstances of the case

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

4. In December 1997, after a verbal altercation in a bar, A.B. attacked the applicant , causing a multiple fracture of her right arm.

5. The injury was characterised by a medical expert as grave bodily injury , and the applicant sought psychological help concerning the attack.

6. O n 29 April 1998 the Zagreb Municipal State Attorney ’ s Office ( Op ć insko dr ž avno odvjetni š tvo u Zagrebu ) indicted A.B. in the Zagreb Municipal Criminal Court ( Op ć inski kazneni sud u Zagrebu ) on charges of causing serious bodily injury.

7. On 26 January 1999 the applicant submitted a civil claim for damages to the Zagreb Municipal Criminal Court .

8. In the period between 22 October 1998 and 21 February 2002 several hearings were held, at which the trial court heard the applicant, A.B. and several witnesses, and obtained the relevant medical evidence. During the proceedings, the applicant assumed the victim status and was represented by a lawyer.

9. On 18 March 2003 the Zagreb Municipal Criminal Court adopted a judgment which was quashed on appeal by the Zagreb County Court ( Ž upanijski sud u Zagrebu ) on 8 July 2003, and a retrial was ordered.

10. In the resumed proceedings, on 3 February 2004 the Zagreb Municipal Criminal Court terminated the proceedings against A.B. , on the ground that the prosecution had become statute -barred. This decision was not served on the applicant. It became final on 7 March 2004.

11. In November 2010 the case file was destroyed according to the internal court rules (see paragraph 16 below). Only the decision terminating the proceedings was kept in the archives of the Zagreb Municipal Criminal Court .

12. On 21 November 2012 the applicant inquired in the Zagreb Municipal Criminal Court about the status of her case and was then served wi th the decision of 3 April 2004 by which the proceedings had terminated.

B. Relevant domestic law

1. Constitution

13. The relevant provisions 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) read as follows:

Article 23

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

2. Criminal Code

14. The relevant provisions of the Criminal Code ( Kazneni zakon , Official Gazette nos. 110/1 997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003 and 190/2003 ) provid e :

Article 19

“(1) Criminal prosecutions for the purposes of applying the criminal legislation of the Republic of Croatia, ..., may not be instituted after expiry of the following periods, calculated from the time the offence was committed:

...

- three years if the case concerns a criminal offence punishable by a sentence of more than one year ’ s imprisonment ...”

Article 20

(1) The limitation period shall start to run from the date on which the offence was committed.

...

(3) The statutory limitation period shall be interrupted each time a procedural step is taken concerning the prosecution of the offence.

...

(5) The statutory limitation period shall start to run again after each interruption.

(6) Criminal prosecutions shall in all cases become time-barred after expiry of the double statutory limitation period .”

Article 99

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

3. Code of Criminal Procedure

15. 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, 143/2002, 62/2003 and 115/2006) provided :

Article 291

“(1) The president of the trial panel shall terminate proceedings and shall serve his or her decision on the parties and the victim ... when ...

2) he has learned that the proceedings cannot be continued for the reasons provided for in Article 353 ... (6) ... of this Code. ... “

Article 353

“A judgment dismissing the charges shall be issued if ...

6) the proceedings have become statute-barred ... “

4 . Courts ’ Rules

16. The relevant provision of the Courts ’ Rules ( Sudski poslovnik , Official Gazette nos. 158/2009, 03/2011, 34/2011, 100/2011, 123/2011, 138/2011, 38/2012, 111/2012, 39/2013 and 48/2013) provides:

Section 278

“ ...

After the expiry of the relevant time-limit ... the case files shall be transferred from the common archives to the archives, that is to say given [for recycling] or destroyed.”

Section 280

“ The case files shall be kept in the common archives:

... five years after the final termination of the [criminal] proceedings ...”

COMPLAINT

17. The applicant complained, under Articles 3 and 8 of the Convention, of a lack of an effective procedural response by the domestic authorities to an act of violence against her by a private party.

THE LAW

18. Complaining of a lack of an effective procedural response by the domestic authorities to an act of violence against her by a private party the applicant relied on Articles 3 and 8 of the Convention, which, in so far as relevant, 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 ... life ...”

A . The parties ’ arguments

19. The Government contended that the applicant had lodged her application with the Court outside the relevant six-month time-limit. The Government pointed out that the applicant had made no inquiry about the status of her case until November 2012 whereas the available medical evidence of her psychological treatment showed that already in 2002 she had been dissatisfied with the effectiveness of the authorities ’ response to the act of violence against her. Furthermore, the Government stressed that the applicant was represented by a lawyer who must have been aware that the proceedings could become time-barred but she still took no measure to follow the course of the proceedings and to protect her rights for over ten years. The Government also submitted that the applicant had failed to provide any relevant explanation for such lack of diligence on her part. In any case, the Government considered that the applicant ’ s complaints as to the lack of an effective procedural response of the domestic authorities to the act of private violence against her were unfounded.

20. The applicant maintained her complaints arguing that she had learnt only in December 2012 that the criminal proceedings against A.B. had come to an end in 2004. She then lodged an application with the Court complying with the relevant six-month time-limit. The applicant also stressed that it was incumbent on the domestic authorities to inform her of the termination of the proceedings. She therefore considered that there had been no reason for her to inquire about the status of the case. In the applicant ’ s view, she could not bear any adverse consequences for the failure of the authorities to comply with their obligations. She also considered that her situation was a continuing one and that a violation of her rights persisted until she had finally learnt that the proceedings had been terminated. Accordingly, the applicant considered that she had complied with requisite six-month time ‑ limit for bringing an application with the Court.

B . The Court ’ s assessment

22. 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; Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001; Remetin v. Croatia (no. 2), no. 7446/12 , § 77, 24 July 2014; and Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08 , §§ 259-260, ECHR 2014 (extracts)).

23 . 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).

24 . 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). Nevertheless, this does not relieve an applicant of his own individual obligation to undertake elementary steps and seek information from the relevant authorities about the investigation ’ s progress or the lack thereof (see, for example, Gasyak and Others v. Turkey , no. 27872/03 , § 58 , 13 October 2009 ; Manukyan v. Georgia (dec.), no. 53073/07, § 30, 9 October 2012; and Vartic v. Romania (dec.), no. 27631/12, § 51, 6 May 2014).

26 . In the case at issue the Court notes that the criminal proceedings at the domestic level concerning the attack against the applicant by a private party came to a conclusive end on 7 March 2004 when the decision of the Zagreb Municipal Criminal Court, terminating the proceedings against her attacker on the grounds of prescription, became final (see paragraph 10 above). The applicant inquired in the Zagreb Municipal Criminal Court about the status of the proceedings only on 21 November 2012; that is more than eight years and eight months later (see paragraph 12 above). She then brought her application to the Court on 11 February 2013, which is almost nine years after the termination of the proceedings at the domestic level.

27 . T he Court is mindful that in principle where an applicant is entitled to be served automatically with a copy of the final domestic decision, the six-month period starts running from the date of service of the copy of the decision (see Worm v. Austria , 29 August 1997, § 33, Reports of Judgments and Decisions 1997 ‑ V). In this connection the Court notes that the Zagreb Municipal Criminal Court was obliged under the relevant domestic law to serve the decision terminating the proceedings on the applicant (see paragraph 14 above) and that it did not do so until the applicant inquired about the status of her case on 21 November 2012 (see paragraph 12 above).

28. However, the Court observes that t he applicant provided no reasonable explanation for her inactivity in keeping track on the progress of the proceedings at the domestic level (compare Bayram and Yıldırım v. Turkey (dec.), no. 38587/97 , ECHR 2002 ‑ III ) although, in general, applicants are required to undertake elementary steps and seek information from the relevant authorities about the progress of the proceedings or the lack thereof (see Manukyan , cited above, § 30; and Vartic , cited above, § 51).

29. Furthermore, the Court cannot overlook the fact that during the domestic proceedings the applicant was represented by a lawyer and that she should have been aware that under the relevant domestic law the prosecution would become time-bared six years after the attack against her in December 1997 (see paragraph 13 above, Articles 19 § 1 and 20 § 6 of the Criminal Code). It accordingly follows that at least in December 2003 the applicant must have been aware that the criminal proceedings against her attacker had come to some kind of a conclusion but she made no contact with the authorities concerning the status of her case for a further period of almost nine years.

30. Consequently, by her failure to keep track of the progress of her case and by bringing her application with the Court on 11 February 2013 the applicant prevented the Court from establishing all the relevant circumstances of the case as the domestic case file had long been destroyed (see paragraph 11 above). She thereby frustrated the purpose of the six ‑ month time-limit which is, inter alia , to facilitate the establishment of facts in a case, since with the passage of time, any fair examination of the issues raised is rendered problematic (see Sabri GüneÅŸ , cited above, § 39).

31. Against the above background, in view of the particular circumstances of the applicant ’ s case, t he Court concludes that the applicant failed to display the necessary diligence in observing the six-month time ‑ limit laid down in Article 35 § 1 of the Convention .

32. I t follows that the applicant ’ s complaints have 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 16 July 2015 .

Søren Nielsen Isabelle Berro Registrar President