FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 17765/07 by Branko GAZIBARIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 25 March 2010 as a Chamber composed of:

Christos Rozakis , President, Nina Vajić , Elisabeth Steiner , Khanlar Hajiyev , Dean Spielmann , Giorgio Malinverni , George Nicolaou , judges, and Søren Nielsen, Section Registrar ,

Having regard to the above application lodged on 6 March 2007,

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

The applicant, Mr Branko Gazibarić, is a Croatian national who was born in 1972 and lives in Vukovar. He was represented before the Court by Mr I. Plavšić, a lawyer practising in Vinkovci. The Croatian Government (“the Government”) were represented by their Agent, Mr s Š. Stažnik.

A. The circumstances of the case

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

Until 1991 the applicant lived in Vukovar , Croatia . Some time in June 1991 he went to Serbia and in October 1991 he was called up by the Yugoslav Peoples ’ Army. On 23 May 1992 he returned to Vukovar.

On 31 August 1992 an investigation was opened in respect of the applicant and ten other persons of Serbian origin on suspicion of having taken part in the armed conflict against the Republic of Croatia in 1991. The Osijek Military Court ordered the applicant ’ s detention. However, this order was not enforced.

In May 1997 the investigation was stayed because the majority of the defendants and witnesses lived in the occupied territories. The investigation was continued in November 2000 before the Vukovar County Court.

On 10 October 2001 Vukovar County Court revoked the applicant ’ s detention order but ordered that the applicant ’ s passport be withdrawn. On 21 May 2003 the court terminated the investigation under the General Amnesty Act. However, on 27 May 2003 the same court set aside its previous decision and decided to continue the investigation in respect of the applicant. On 30 July 2003 the investigation gave reasons to belive that the applicant was guilty of a war crime against the civilian population and in particular for having participated in the attacks on the town of Vukovar .

On 10 September 2007 the measure of withdrawing the applicant ’ s passport was extended by a decision of the investigating judge of the Vukovar County Court. This decision is still in effect and the criminal investigation against the applicant is still pending.

B. Relevant domestic law and practice

The relevant part of the Croatian Constitution ( Ustav Republike Hrvatske , Official Gazette no. 41/2001 of 7 May 2001) reads as follows:

Article 29 § 1

“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

Article 32

“Everyone lawfully within the territory of the Republic of Croatia shall have the right to liberty of movement and freedom to choose his residence.

Every citizen of Croatia shall be free to leave the State ’ s territory at any time ...

The right to free movement within the territory of the Republic of Croatia and the right to enter and exit that territory may be exceptionally restricted by law where it is necessary for the protection of the legal order or for the protection of health, rights and freedoms of others.”

The relevant part of the Constitutional Act o f the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:

Section 62

“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which has determined his or her rights and obligations, or a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...

2. If there is provision for another legal remedy in respect of a violation of the constitutional rights [complained of], a constitutional complaint may be lodged only after this remedy has been exhausted.

...”

Section 63

“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant ’ s rights and obligations or a criminal charge against him or her within a reasonable time ...

(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...

(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date on which a request for payment is lodged.”

The relevant part of the Courts Act ( Zakon o sudovima , Official Gazette no s . 150/05 and 16/07), which entered into force on 29 December 2005, read s as follows:

III. PROTECTION OF THE RIGHT TO A HEARING WITHIN A REASONABLE TIME

Section 27

“(1) A party to court proceedings who considers that the competent cou rt failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her , may lodge a request for the protection of the right to a hearing within a reasonable time with the court at the next level of jurisdiction.

(2) If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia , the High Petty Offences Court of the Republic of Croatia or the Administrative Court of the Republic of Croatia , the request shall be decided by the Supreme Court of the Republic of Croatia .

(3) The proceedings for deciding the request referred to in paragraph 1 of this section shall be treated as urgent.

Section 28

(1) If the court referred to in section 27 of this Act finds the request well-founded , it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time.

(2) The compensation shall be paid out of the State budget with in three months from the date the party ’ s request for payment is lodged.

(3) An appeal, to be lodged within fifteen days with the Supreme Court, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. No appeal lies against the Supreme Court ’ s decision but a constitutional complaint may be lodged.”

The Government submitted the Constitutional Court ’ s decisions nos. U-IIIA-2193/2003 of 13 December 2005; U-IIIA-4493/2005 of 26 February 2007; and U-IIIA-405/2006 of 4 June 2008 where the Constitutional Court examined the length of the criminal proceedings against the defendants in those proceedings and took into account the duration of the entire proceedings, including the investigation.

The relevant part 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) provides as follows:

Article 395

“(1) A person whose rights have been infringed in a decision adopted by an investigating judge ... may always lodge an appeal where this Act has not expressly excluded the right to an appeal.

...”

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.

The applicant also complained under Article 13 of the Convention that he had no remedy in respect of the length of proceedings at his disposal.

Under Article 2 of Protocol No. 4 to the Convention the applicant complained that the national authorities had withdrawn his passport pending a criminal investigation against him. As a consequence he had been unable to leave the country since October 2001.

The applicant further complained under Article 3 of the Convention that the stress caused to him by the prolonged investigation had amounted to inhuman and degrading treatment contrary to Article 3 of the Convention.

The applicant also complained under Article 14 of the Convention that he had been discriminated against because he is of Serbian origin.

THE LAW

1 . The applicant complained about the length of the criminal investigation against him. He relied on Article 6 § 1 of the Convention, the relevant part of which reads:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The Government argued that the applicant had not exhausted domestic remedies. In the period before 29 December 2005 he could have lodged a complaint about the length of the criminal investigation directly with the Constitutional Court and, after that date, to a hierarchically superior court under the amendments of the Courts Act.

As regards the merits of the complaint, the Government argued that, in view of the complexity of the case, the fact that the defendants and some witnesses had lived in the occupied territories for a period of time and taking into consideration the gravity of charges, the length of the investigation had not exceeded the reasonable time requirement.

The Court stresses that the machinery for the protection of fundamental rights established by the Convention is subsidiary to the national systems safeguarding human rights. In line with this principle, and in accordance with Article 35 § 1 of the Convention, the Court may only deal with an issue 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, Hentrich v. France , 22 September 1994, § 33, Series A no. 296-A, and Remli v. France , 23 April 1996, § 33, Reports 1996-II). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. To hold otherwise would mean to duplicate the domestic process with proceedings before the Court, which would be hardly compatible with the subsidiary character of the Convention (see Gavril Yosifov v. Bulgaria , no. 74012/01, § 42, 6 November 2008 ). Nevertheless, the obligation to exhaust domestic remedies requires only that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (see Balogh v. Hungary , no. 47940/99, § 30, 20 July 2004, and John Sammut and Visa Investments Limited v. Malta (dec.), no. 27023/03, 28 June 2005).

The Court notes that the Government submitted three decisions of the Constitutional Court , the first of which had been adopted in 2005 – long before the present application was lodged with the Court – and in which the Constitutional Court , when examining the length of the pending criminal proceedings, had taken into account the duration of the investigation as well.

The Court therefore finds that the applicant had at his disposal an effective domestic remedy in respect of the length of the criminal investigation against him. He could have lodged a constitutional complaint in that respect, as well as, after December 2005, a complaint with a hierarchically superior court. However, he failed to use any of these remedies.

It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2 . The applicant further complained that he had no effective remedy in respect of the length of the investigation against him. He relied on Article 13 of the Convention which reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government argued that the applicant had effective remedies at his disposal, namely a constitutional complaint and a complaint to a hierarchically superior court (see above).

The Court notes that the above conclusions as to the existence of an effective remedy in respect of the length of a pending criminal investigation show that a complaint under the Courts Act and a constitutional complaint are effective remedies in that respect.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3 . The applicant further complained that the withdrawal of his passport had prevented him from leaving the country. He relied on Article 2 § 3 of Protocol No. 4 to the Convention which reads:

“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public , for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”

The Government argued that the applicant had failed to exhaust domestic remedies because he had not lodged an appeal against the decision to withdraw his passport of 10 September 2007 given by an investigating judge of the Vukovar County Court. He could have also lodged a constitutional complaint.

As to the merits of the complaint, the Government argued that the measure had been necessary and proportionate in view of the charges against the applicant.

The applicant argued that there had been no reason for withdrawing his passport.

The Court refers to the general obligation to exhaust domestic remedies as set out above and notes that the applicant ’ s passport was withdrawn by a decision given on 10 September 2007 by an investigating judge of the Vukovar County Court in the context of the pending criminal investigation in respect of the applicant.

Under Article 395 of the Code of Criminal Procedure it is clear that the applicant had the right to lodge an appeal against the said decision, which he failed to do. In the Court ’ s view, an appeal against a first-instance decision is a regular remedy which would have enabled the competent national authorities to address the applicant ’ s complaint concerning the withdrawal of his passport. In the event that his appeal had been unsuccessful, the applicant could have lodged a constitutional complaint whereby he would have been able to expressly complain about a violation of his right to freedom of movement since the Croatian Constitution guarantees that right and since the Convention is directly applicable in Croatia . By failing to use these remedies the applicant did not give the national authorities an opportunity to prevent or put right the violations alleged against him before he submitted these allegations to the Court .

It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

4 . The applicant further complained that the stress caused to him by the ongoing investigation had amounted to treatment contrary to Article 3 of the Convention which reads:

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

The Court reiterates that that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello-Roberts v. the United Kingdom , 25 March 1993, § 30, Series A no. 247-C, and A. v. the United Kingdom , 23 September 1998, § 20, Reports 1998 ‑ VI).

The Court notes that the applicant in the present case complained that the mere duration of a criminal investigation against him had amounted to a violation of Article 3 of the Convention. However, the Court considers that the conduct of a criminal investigation as such, even for a prolonged period of time, is not a treatment that might reach a necessary level of severity in order to fall within the ambit of Article 3 of the Convention.

It follows that this complaint is manifestly ill-founded with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

5 . Lastly, the applicant complained that he had been discriminated against on the basis of his Serbian origin. He relied on Article 14 of the Convention which reads:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court notes that the applicant failed to substantiate this complaint and that there is no indication of discrimination of any kind in the criminal proceedings against him.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President