FIRST SECTION

Application no. 57485/09 I.S. against Croatia lodged on 7 October 2009

STATEMENT OF FACTS

The applicant, Ms I. S., is a Croatian national, who was born in 1960 and lives in L. The President granted the applicant ’ s request for her identity not to be disclosed to the public (Rule 47 § 3).

A. The circumstances of the case

The applicant lives in a flat in a building situated in L., Croatia. The ground floor of the building is leased by the L. Municipality to M.M., who runs a restaurant there, “N.”.

On 22 May 2003 the applicant and her sister, M., brought a private prosecution in the O. Municipal Court ( Općinski sud u O. ) against M.Č., a waiter working in the restaurant, for verbal assault and inflicting bodily injury. The applicant alleged, inter alia , that at about 1 a.m. on 10 May 2003 M.Č. had kicked and hit her several times all over her body.

A medical report drawn up at 2.37 a.m. on 10 May 2003 in respect of the applicant established that she had arrived at a hospital at 2 a.m. escorted by the police and alleged that Mr M.Č. had hit her with fists and a bucket. She was diagnosed with contusion of right ankle and contusion and haematoma of right hand. Further medical report of 12 May 2003 confirmed this diagnosis and added the diagnosis of contusion and haematoma of right hip and pain in the neck.

A hearing was held on 26 November 2003, at which criminal proceedings on charges of verbal assault against the applicant and her sister following a private prosecution by M.Č. were joined to the criminal proceedings instituted b y the applicant and her sister.

On 20 January 2004 the applicant ’ s counsel submitted an application for the expedition of the proceedings in order to avoid the expiry of the statutory lim itation period for prosecution.

At a hearing held on 25 August 2004 the applicant ’ s sister gave her oral evidence.

Another hearing was held on 26 October 2004. At a hearing held on 17 November 2004 witnesses V.I., M.S. and G.R. gave evidence. At a hearing held on 16 December 2004 an expert in forensic medicine gave her opinion that the injuries to the applicant ’ s leg and hand could have been caused in the manner described by the applicant. Witness G.Š. also gave evidence.

At a hearing held on 10 February 2005 all the accused gave their oral evidence and the trial was concluded. M.Č. was found guilty of inflicting bodily injury on the applicant, and the applicant and her sister were found guilty of insulting M.Č. A court warning was given in respect of all the accused.

The applicant, he r sister and M.Č. all appealed.

On 21 February 2007 the R. County Court ( Županijski sud u R. ) quashed the first-instance judgment on the ground that, contrary to the requirements of the criminal procedure, some hearings had been conducted by an assist ant to a judge and not a judge.

Hearings in the fresh proceedings were held on 12 February and 26 March 2008.

On 3 July 2008 the criminal proceedings against the applicant and her sister were terminated bu t those against M.Č. continued.

On 20 October 2008 a claim for costs and expenses lodged by the applicant and her sister was dismissed. They lodged an appeal.

Further hearings were held on 27 February and 17 March 2009.

On 10 April 2009 the judge conducting the proceedings learned that the O. Social Welfare Centre (“the Centre”) had instituted proceedings for divesting the applicant and her sister of their legal capacity before the same court and that a special guardian had been appointed for each of them. On 14 April 2009 the judge asked the Centre to extend the guardian ’ s authority to the representation of the applicant in the criminal proceedings in issue. This was complied with on 21 April 2009 on the basis that the applicant and her sister were unaccountable ( neubrojive ) and thus not capable of being parties to the proceedings because of their mental issues.

At a hearing held on 28 April 2009 the special guardians appointed for the applicant and her sister both stated that they were not able to pronounce on whether or not they gave their consent to the continuation of the criminal proceedings in issue.

On 28 April 2009 the proceedings were term inated on the ground that on 21 April 2009 a special guardian had been appointed for the applicant who had not expressly given her consent to the proceedings being conducted and that therefore there was no request by an authorised prosecutor fo r proceedings to be conducted.

On 6 May 2009 the applicant and her sister lodged an appeal.

On 17 June 2009 the R. County Court terminated the proceedings on the ground that in the meantime the prosecution against M.Č. had become time-barred and that therefore the appeal by the applicant and her sister had become obsolete.

On 12 October 2009 the applicant lodged a constitutional complaint about the fact, inter alia , that the criminal proceedings against M.Č. had been terminated.

On 11 March 2010 the Constitutional Court declared the applicant ’ s constitutional complaint inadmissible, finding that the decision terminating the criminal proceedings against M.Č. had not been arbitrary.

B. Relevant domestic law

The relevant parts of the Criminal Code ( Kazneni zakon , Official Gazette no. 110/1997) read as follows:

Article 8

“(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney ’ s Office in the interest of the Republic of Croatia and its citizens.

(2) In exceptional circumstances the law may provide for criminal proceedings in respect of certain criminal offences to be instituted on the basis of a private prosecution or for the State Attorney ’ s Office to institute criminal proceedings following [a private] application.”

BODILY INJURY

Article 98

“Whoever inflicts bodily injury on another person or impairs another person ’ s health shall be fined or sentenced to imprisonment for a term not exceeding one year.”

Article 102

“Criminal proceedings for the offence of inflicting bodily injury (Article 98) shall be instituted by means of private prosecution.”

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 and 62/2003) provide as follows:

Article 2

“(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ...

(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor.

(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.

(4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.”

The relevant provisions of the Family Act ( Obiteljski zakon , Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007) read:

Section 159

“(1) An adult who, on account of mental illness or for other reasons, is unable to care for his or her own needs, rights and interests, or presents a risk to the rights and interests of others, shall be partly or completely divested of legal capacity by a court of law in non-contentious proceedings.

(2) Before adopting a decision under subsection 1 of this section, a court shall obtain the opinion of a medical expert concerning the health condition of the person concerned and its effect on his or her ability to protect all or certain of their personal needs, rights and interests and whether it might put at risk the rights and interests of others ....”

Section 161

“(1) A social welfare centre shall initiate court proceedings where it assesses that, on the grounds set out in section 159(1) of this Act, there is a need to divest a person of legal capacity either completely or partly.

(2) A social welfare centre shall appoint a special guardian for a person in respect of whom proceedings for divesting him or her of legal capacity have been instituted ... ”

Section 162

“The competent social welfare centre shall place under guardianship a person ... divested of legal capacity ... ”

Section 179

(1) The guardian shall take care of the person and his or her rights, obligations and well-being with due diligence, manage his or her assets and take measures aimed at enabling the ward to lead an independent professional and personal life.

... ”

Section 184

“(1) The guardian represents the ward.

... ”

Section 185

“In order to take more important measures concerning the person, personal status or health of the ward, the guardian shall obtain prior consent from a social welfare centre.”

COMPLAINT

Invoking Articles 3, 4, 5 and 8 of the Convention as well as Article 1 of Protocol No. 1, Article 2 of Protocol No. 4 and Articles 2 and 4 of Protocol No. 7, the applicant complains that she was not given adequate protection from the incidents of violence.

QUESTION TO THE PARTIES

Has there been a violation of Article 8 of the Convention in connection with the incidents of violence against the applicant?