Communicated on 19 September 2017

THIRD SECTION

Application no. 47040/07 Anđelka BISTROVIĆ-NASTIĆ against Serbia lodged on 18 October 2007

STATEMENT OF FACTS

The applicant, Ms Anđelka Bistrović-Nastić , is a Serbian national, who was born in 1947 and lives in Croatia. She is represented before the Court by Ms V. Kočić-Mitaček , a lawyer practising in Belgrade.

A. The circumstances of the case

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

The applicant and her husband, both wheelchair users, sold their flat in 2001 and moved in with M.P.-V. and Č .P., another married couple. They handed over the money received for the flat (67,000 deutschmarks (DEM)) to M.P.-V. and Č .P., who were supposed to make the ground floor of their house accessible to wheelchair users and to cater for the applicant and her husband ’ s needs. Even though a contract to that effect was never concluded, M.P.-V. and Č .P. kept all the money. The applicant ’ s husband died in 2002. She then moved to her parent ’ s house in Croatia.

On 2 September 2002 the applicant reported M.P.-V. and Č .P. to the police.

On 22 May 2003 the public prosecutor filed an indictment against the couple, accusing them of fraud. The applicant took part in all of the hearings held before the trial court, together with her lawyer. As the main entrance to the building did not have a ramp, she had to ask a court security officer to open the back entrance for her. Furthermore, only one of the hearings (to which she had been summoned as a witness) was held at the ground floor. All other hearings were held on an upper floor. The applicant therefore required assistance and occasionally had to pay someone to carry her .

At a hearing held in 2005 (it is not clear which as the applicant failed to submit the records of all the hearings), she filed a civil claim within the criminal proceedings.

On 28 December 2006 the first-instance court convicted the couple of fraud. They were given conditional prison sentences. The court held that the accused had been supposed to return DEM 10,000 to the applicant and her husband and, with the remaining DEM 57,000, to make the ground floor of their house accessible to wheelchair users and to cater for the applicant and her husband ’ s needs. Therefore, it ordered the accused to pay the applicant the equivalent of DEM 10,000 in Serbian dinars and instructed the applicant to pursue the remainder of her civil claim in the civil courts.

On 18 April 2007 the second-instance court found that the time-limit for criminal prosecution had expired on 1 March 2007 (that is, six years after the alleged fraud had been committed) and dismissed the charges. No hearing was held in the appeal proceedings.

On 26 October 2007 the applicant was awarded approximately 2,500 euros (EUR) in respect of her costs and expenses for the participation at the hearing to which she had been summoned as a witness. When assessing that amount the court took into account her disability and awarded her a higher amount than to able-bodied witnesses.

Meanwhile, the applicant instituted civil proceedings. In November 2010 the civil court awarded her EUR 33,500, default interest from 2001 and legal costs. The judgment became final on 4 April 2013. It is not known whether that judgment has been enforced or not.

B. Relevant domestic law

The Code of Criminal Procedure 2001 [1] was in force until 2013. The victims of criminal offences were entitled to be notified of all hearings held in the case and to actively participate in those hearings in person or through a lawyer (Articles 285 and 60 of the Code). Unless summoned as witnesses, their presence was not required; however, if the public prosecutor decided to drop the charges at a hearing at which a duly notified victim failed to appear or appoint a lawyer, he or she would thus lose the right to start a subsidiary prosecution (see Article 62 of the Code). A victim was also entitled to file a civil claim within the context of criminal proceedings (see Article 201 of the Code). If so, the criminal court could accept the claim or instruct the victim to pursue civil proceedings; it could not reject the claim (see Article 206 of the Code). In accordance with Article 364 § 4 of the Code, victims were not entitled to appeal against decisions regarding their civil claims or any other aspect of a criminal case, except for decisions regarding their own costs and expenses.

The Disability Discrimination Act 2006 [2] entered in force on 25 April 2006. Section 33 of the Act, which provides that all local authorities must take appropriate measures to ensure to persons with disabilities access to buildings, entered into force on 1 January 2007.

C. Relevant international law

The Convention on the Rights of Persons with Disabilities entered into force on 3 May 2008 and was ratified by Serbia on 31 July 2009.

COMPLAINTS

The applicant complains under Articles 6 and 14 of the Convention about physical access to the building housing the criminal court which dealt with her civil claim. She further complains under Article 6 about the length of the criminal proceedings at issue and under Article 13 about the effectiveness of domestic remedies for her complaint in that regard.

QUESTIONS TO THE PARTIES

1. Were any domestic remedies available to the applicant in respect of her complaint about access to the building housing the criminal court which dealt with her civil claim? If so, did she use them?

2. Should that complaint be examined under Article 6, Article 8 or both Articles of the Convention (see, for example, Botta v. Italy , 24 February 1998, Reports of Judgments and Decisions 1998-I; Zehnalová and Zehnal v. the Czech Republic ( dec. ), no. 38621/97, ECHR 2002-V; Mółka v. Poland ( dec. ), no. 56550/00, ECHR 2006-IV; Farcaş v. Romania ( dec. ), no. 32596/04, 14 September 2010; and Gherghina v. Romania [GC] ( dec. ), no. 42219/07, 9 July 2015)? Has there been a breach of either of those Articles and/or a breach of Article 14 taken in conjunction with those Articles?

3. The Government are required to indicate the date of the applicant ’ s civil claim and the number of hearings after that date in the criminal proceedings at issue (the case against M.P.-V. and Č.P). They are further requested to provide the entire criminal file in that case.

4. The applicant is required to indicate the dates of the hearings for which she allegedly had to pay someone to carry her to the courtroom and the amounts paid.

[1] Zakonik o krivičnom postupku , Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115 /05, 49/07, 122/08, 20/09, 72/09, 76/10.

[2] Zakon o sprečavanju diskriminacije osoba sa invaliditetom , Official Gazette of the Republic of Serbia nos. 33/06 and 13/16.