FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4009/05 by Goran MARKOTA against Croatia

The European Court of Human Rights (First Section), sitting on 4 January 2007 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr L. Loucaides , Mrs F. Tulkens , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 2 January 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Goran Markota, is a Croatian national who was born in 1976 and lives in Sisak. He is represented before the Court by Mr E. Fridrih, a lawyer practising in Sisak.

A. The circumstances of the case

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

The Sisak State Attorney Office filed a bill of indictment with the Sisak Municipal Court on 10 February 1997, charging the applicant with causing grievous bodily harm to a third person. The offence was allegedly committed on 21 July 1996.

During the proceedings, conducted by an individual judge, the medical expert stated at the hearing held on 29 October 1997 that the injuries found on the victim could not be classified as grievous, but were of a minor nature. According to domestic law, prosecution for causing bodily harm of a minor nature falls outside the State Attorney ’ s competence and the Sisak State Attorney ’ s Office therefore withdrew their charges against the applicant.

Pursuant to domestic legislation, the victim, a certain M.K., took over the proceedings.

On 11 January 2000 the Sisak Municipal Court delivered a judgment finding the applicant guilty of causing bodily harm to another person and sentenced him to two months ’ imprisonment.

The applicant ’ s subsequent appeal of 29 January 2000 was dismissed by the Sisak County Court on 4 July 2000.

The prosecution for the offence with which the applicant was charged became time-barred on 21 July 2000.

Under domestic law governing criminal procedure, appellate courts ’ decisions are not sent directly to the parties to the proceedings by these courts, but via the courts of first instance. The appellate court ’ s decision becomes legally binding at the moment when it is sent out by that court.

The Sisak County Court ’ s judgment was sent to the Sisak Municipal Court on 28 September 2001 and received at that court on 15 October 2001.

The judgment was served on the applicant ’ s counsel on 12 March 2002.

On 10 April 2002 the applicant filed a constitutional complaint in which, relying on Article 6 of the Convention, he complained about the length of the criminal proceedings against him. He also complained that the trial judge had refused to hear the witnesses proposed by him and about the assessment of the evidence by the first-instance court. He also alleged that there had been a violation of the presumption of innocence. The applicant further complained that, when the appellate court ’ s judgment was sent out by that court, the offence with which he was charged had already bec o me time-barred and that the appellate court should therefore have rejected the charge against him.

On 9 June 2004 the Constitutional Court dismissed the applicant ’ s complaint as manifestly ill-founded. The Court made no reference to the applicant ’ s argument that the offence had become time-barred.

B. Relevant domestic law

The relevant part of the Constitutional Act on 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. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional self-government, or a legal person invested with public authority, on his or her rights or obligations, or about suspicion or accusation for a criminal offence, has violated his or her human rights or fundamental freedoms, or right to local or regional self-government, guaranteed by the Constitution (hereinafter: constitutional right)...

...”

Section 76 provides, inter alia , that when the Constitutional Court allowes a constitutional complaint, it must quash the impugned decision and remit the case to the competent authority for a new decision.

The relevant provisions of the Penal Code ( Kazneni zakon , Official Gazette no. 110/1997) are outlined below:

Section 19 states, inter alia , that prosecution for offences punishable by a fine or up to one year ’ s imprisonment is time-barred once two years have elapsed from the date on which the offence was committed .

Section 20 sets out the rules governing stay of the limitation period due to the institution of criminal proceedings. It provides, inter alia , that prosecution becomes time-barred in any event, that is in spite of the institution of criminal proceedings against the perpetrator, once a period twice as long as the prescribed statutory limitation for the offence in question has elapsed from the date on which the offence was committed.

Section 98 provides that a person who causes bodily injury to another person shall be punished by a fine or imprisonment of up to one year.

Section 409 of the Criminal Procedure Act ( Zakon o kaznenom postupku , Official Gazette 110/1997) provides , inter alia , that the appellate courts are to return the case files, with sufficient copies of their decision, to the first-instance courts in order that the latter can serve the relevant decision on the parties.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about the length and the fairness of the criminal proceedings brought against him. He points out, firstly, that when the appellate court ’ s judgment was sent out by that court, prosecution for the offence with which he had been charged had already become time-barred due to the delays caused in sending out the judgment and that therefore the appellate court should have rejected the charge against him. He further claimed that the Constitutional Court ’ s complete failure to address his submissions concerning the above issue in its decision was incompatible with the principle of a fair trial.

2. He further complains under Article 6 § 2 of the Convention about a violation of the presumption of innocence in that the domestic courts had erred in their assessment of the relevant facts and had not at all established his intention to cause bodily harm to M.K.

3. Finally, the applicant complains under Article 6 § 3(d) of the Convention that his right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him was violated because the judge conducting the trial refused to hear some of the witnesses proposed by the applicant.

THE LAW

The applicant made several complaints under Article 6 of the Convention, the relevant parts of which provides:

Article 6

“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

1. The applicant complained firstly under Article 6 § 1 of the Convention about the length and the fairness of criminal proceedings brought against him. He firstly points out that, when the appellate court ’ s judgment was sent out by that court, prosecution for the offence with which he was charged had already become time-barred due to the delays caused in sending out the judgment and that the appellate court should therefore have rejected the charge against him. He further claimed that the Constitutional Court ’ s complete failure to address his submissions concerning the above issue in its decision was incompatible with the principle of a fair trial.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further complained under Article 6 § 2 of the Convention that the presumption of his innocence had been violated because the domestic courts had erred in their assessment of the relevant facts and had not at all established his intention to cause bodily harm to M.K.

Finally, the applicant complained under Article 6 § 3(d) of the Convention that his right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him had been violated because the judge conducting the trial had refused to hear some of the witnesses proposed by the applicant.

In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court considers that th is part of the application does not disclose any appearance of a violation of any of the above Articles of the Convention . It follows that these complaints are inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint s concerning the length and the fairness of the criminal proceedings against him ;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos R OZAKIS Registrar President