FIRST SECTION

Application no. 61305/09 Ivan Filip GREGOVIĆ against Croatia lodged on 3 November 2009

STATEMENT OF FACTS

1. The applicant, Mr Ivan Filip Gregović , is a Croatian national, who was born in 1985 and lives in Zagreb . He is represented before the Court by Ms L. Kušan , a lawyer practising in Ivanić Grad.

A. The circumstances of the case

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

3. On 5 May 2004 the applicant, together with two other individuals, I.M. and M.S., lodged a criminal complaint with the Zagreb Municipal State Attorney ’ s Office ( Općinsko državno odvjetništvo Zagreb ) against M.O. and nine unknown perpetrators alleging that on 4 April 2004 they had kicked and hit him and caused him bodily injuries such as nose fracture and eye damage and had thus committed the criminal offence of violent behaviour and the criminal offence of inflicting bodily injury. On 6 July 2004 the applicant ’ s lawyer informed the State Attorney ’ s office about the names of two eyewitnesses and that the police had identified the vehicle of the perpetrators.

1. Proceedings against M.O.

4. On 1 February 2005 the Zagreb Municipal State Attorney ’ s Office lodged a request to institute preliminary proceedings with the Zagreb Municipal Penal Juvenile Court ( Općinski kazneni sud u Zagrebu , Odjel za mladež ) in connection with the allegations that on 4 April 2004 M.O. and others had attacked the applicant and two other individuals and had committed a criminal offence of inflicting grave bodily injuries.

5. A hearing was held on 12 October 2009 at which an educative measure was applied in respect of M.O. He was ordered to apologise to the applicant and to get involved in the individual or group sessions with the Youth Counselling Centre. M.O. lodged an appeal which was accepted by the Zagreb County Court ( Županijski sud u Zagrebu ) and the case was remitted fro fresh examination. On 12 October 2009 the first-instance court again applied the same special measure as previously.

6. Both the State Attorney and M.O. lodged their appeals. On 14 December 2010 the Zagreb County Court terminated the proceedings on the ground that the prosecution had become time-barred.

2. Proceedings against five further individuals

(a) Case-file no. 1281/05 (later on 4384/07)

7. On 2 May 2005 the same Office lodged an indictment in the Zagreb Municipal Penal Court ( Općinski kazneni sud u Zagrebu ) against Ma.O ., M.B., H.M., T.K. and H.B., alleging that on 4 April 2004 they had attacked the applicant, I.M. and M.S. and kicked and hit the applicant, I.M. and M.S and had thus committed the criminal offence of violent behaviour. The proceedings were conducted under the case-file no. 1281/05 (later on no. 4384/07.

8. Hearings scheduled for 17 April and 19 July 2007 were adjourned since a representative for the prosecution did not appear.

9. Hearings were held on 29 August and 25 September 2007 in the absence of prosecution. At hearings held on 18 October 2007 a representative for the prosecution was present.

10. On 21 November 2007 the Zagreb Municipal State Attorney ’ s Office gave up further prosecution with the explanation that the accused had attacked and injured the applicant, I.M. and M.S. because they had erroneously believed that they had previously injured their younger brother M.O. Since their attack on the applicant, I.M. and M.S. had thus been motivated by retribution, the elements of the criminal offence of violent behaviour had not been fulfilled because it required that the attack was unmotivated.

11. Pursuant to the above motion by the State Attorney ’ s Office , on 26 November 2007 the Zagreb Municipal Penal Court terminated the proceedings.

12. The applicant then took over the prosecution as the injured party. The case-file no. was changed to 4384/07.

13. At a hearing held on 23 January 2008 the applicant extended the charges to the criminal offence of inflicting grave bodily injuries. He was invited to specify the factual background and legal qualification of the criminal offences at issue.

14. On 30 January 2008 the applicant submitted an indictment against Ma.O ., M.B., H.M. T.K. and H.B. alleging that on 4 April 2004 at about 4 p.m. they had stopped the vehicle where he was with I.M. and M.S., opened the door and dragged him, I.M. and M.S. out of their vehicle, hit him and kicked them many times all over the body which caused him grave bodily injuries. They had thus committed the criminal offences of violent behaviour and inflicting grave bodily injuries. This submission was registered under the case-file no. 382/08.

15. On 1 March 2008 the applicant again submitted the same indictment in the case-file no. 4384/07.

16. On 5 January 2008 the applicant lodged an objection with the Zagreb County State Attorney ’ s Office concerning the Zagreb Municipal State Attorney ’ s Office withdrawal of charges on 21 November 2007.

17. In a letter of 7 March 2008 the President of the Zagreb Municipal Penal Court panel informed the applicant the he was not authorised to pursue the prosecution in respect of the criminal offence of inflicting bodily injury, but only the State Attorney ’ s Office which had not given up prosecution in respect of that offence.

18. On 14 March 2008 the Zagreb Municipal State Attorney ’ s Office took over the prosecution.

19. On 4 April 2008 the Zagreb County State Attorney ’ s Office informed the applicant that his objection of 4 January 2008 had been well founded.

20. On 23 April 2008 the Zagreb Municipal State Attorney ’ s Office submitted amended indictment, again alleging that the accused had committed only the criminal offence of violent behaviour. The proceedings were continued under the case-file no. 4384/07.

21. On 25 September 2008 the Zagreb Municipal Penal Court acquitted the accused. The relevant part of the judgment as regards the criminal offence of inflicting violent behaviour reads:

“Z[ agreb ] M[ unicipal ] S[ tate ] A[ ttorney ] indicted the accused Ma.O ., B.M., H.M., T.K and H.B. on 22 April 2005 ... that they had committed the criminal offence under Article 331 § 1 of the Criminal Code. In a submission of 21 November 2007 the Z[ agreb ] M[ unicipl ] S[ tate ] A[ ttorney ] gave up the prosecution and therefore on 26 November 2007 this court terminated the proceedings. In his submission of 10 December 2007 the injured party Ivan Filip Gregović took over the prosecution on the basis of the above-mentioned indictment. However, on 31 January 2008 he submitted a fresh indictment, adding the charges of the criminal offence under Article 99 of the Criminal Code. The injured party was not authorised to extend the charges to the criminal offence under Article 99 of the Criminal Code because the Z[ agreb ] M[ unicipal ] S[ tate ] A[ ttorney ] had never indicted the accused for that offence and therefore the criminal offence under Article 99 of the Criminal Code could not have been prosecuted in these proceedings. In a submission of 14 March 2008 the Z[ agreb ] M[ unicipal ] S[ tate ] A[ ttorney ] took over the proceedings ... and altered the statutory description and legal qualification of the offence so as to indict the accused the criminal offence under Article 331 §§ 1 and 2 of the Criminal Code.

...”

As regards the criminal offence of violent behaviour, the Zagreb Penal Municipal Court found that the elements of that offence had not been met since it required that violence was not motivated. However, in the case at issue the attackers attacked the applicant erroneously believing that he had previously broken arm of M.O., a brother of Ma.O . Thus, their attack was motivated by retribution.

22. On 26 September 2008 the applicant ’ s lawyer complained to the President of the Zagreb penal Municipal Court that at the hearing held on 25 September 2009 the presiding judge interrupted her closing arguments and erroneously dictated in the minutes of the hearing that she only endorsed the closing arguments of the State attorney without her own closing arguments being entered as well as the fact that the judge interrupted her.

23. On 7 October 2008 the President of the Zagreb Penal Municipal Court answered the applicant ’ s lawyer that he had established that the presiding judge had not allowed her to give her closing arguments only as regards the criminal offence of inflicting bodily injury since that offence was not the subject of the proceedings at issue.

24. This judgment was upheld by the Zagreb County Court on 14 July 2009.

25. On 4 November 2009 the applicant lodged a constitutional complaint against the judgments of 25 September 2008 and 14 July 2009, arguing that the national courts had denied him protection against a violent act. Relying on the Court ’ s case-law he contended that the procedural requirement under Article 3 of the Convention had not been met.

26. On 27 January 2010 the Constitutional Court found that the applicant was not authorised to submit a constitutional complaint in respect of the criminal proceedings conducted against third persons and on that ground declared his constitutional complaint inadmissible.

(b ) Case-file no. 328/208 (later on 4384/07)

27. A new case-file was opened under no. 328/208 upon the applicant ’ s indictment of 30 January 2008 (see above, § 14).

28. On 7 July 2008 the Zagreb Municipal Penal Court declared the applicant ’ s indictment of 30 January 2008 inadmissible on the ground that another set of the criminal proceedings under the case file no. 4384/07 had already been instituted in respect of the same event against the same perpetrators. The applicant appealed arguing that in that so called “other set of criminal proceedings” he had been invited to specify the factual background and legal qualification of the criminal offences at issue, which he had done in the form of the indictment of 30 January 2008 which was then erroneously filed under a new case-file number.

29. The applicant ’ s appeal was accepted by the Zagreb County Court on 23 December 2008 and the case was remitted to the Zagreb Municipal Court.

30. The proceedings were continued under the case-file no. 644/09 and on 15 October 2009 the Zagreb Penal Municipal Court dismissed the applicant ’ s indictment against Ma.O . and others in respect of the criminal offences of violent behaviour and inflicting grievous bodily injury on the ground that the prosecution for the same offences was conducted in parallel criminal proceedings under the case-file no. 4384/07. The applicant lodged an appeal arguing that in the proceedings conducted under the case-file no. 4384/07 the panel refused to examine the charges concerning the criminal offence of inflicting grievous bodily injury.

31. The appeal was accepted by the Zagreb County Court on 7 September 2010 and the case was remitted to the first-instance. The proceedings concerning the charges of inflicting violent behaviour were resumed under the case-file no. 2748/10. On 7 December 2010 the proceedings were terminated on the ground that the prosecution had become time-barred. The applicant ’ s subsequent appeal was dismissed by the Zagreb County Court on 13 September 2011.

B. Relevant domestic law

25. 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) It may be exceptionally provided by law that criminal proceedings in respect of certain criminal offences should be instituted upon a private prosecution or that the State Attorney ’ s Office should institute criminal proceedings upon [a private] application.”

GRIEVOUS BODILY INJURY

Article 99

“Whoever inflicts a grievous bodily injury to another person or gravely impairs another person ’ s health shall be sentenced to a prison term between six months and three years

...”

32. 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) as then in effect, provide:

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.”

Articles 47 to 61 regulate the rights and duties of private prosecutors and of injured parties acting as subsidiary prosecutors. The Criminal Code distinguishes between these two roles. A private prosecutor ( privatni tužitelj ) is an injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (these are offences of a lesser degree). The injured party as a subsidiary prosecutor ( oštećeni kao tužitelj ) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities, for whatever reason, have decided not to prosecute. Pursuant to Article 47, where the prosecution is brought privately, the charge must be lodged with the relevant authority within three months after the qualified prosecutor has learnt of the offence and the identity of the perpetrator.

Article 48

“(1) A request to prosecute shall be lodged with the competent State Attorney ’ s Office and a private prosecution with the competent court.

(2) Where the injured party has lodged a criminal complaint ... he or she shall be considered to have thereby lodged a request to prosecute.

(3) Where the injured party has lodged a criminal complaint or a request to prosecute but the [competent authorities] establish that the criminal offence in question should be prosecuted on the basis of a private prosecution, the criminal complaint or the request to prosecute shall be treated as a timely private prosecution if it has been submitted within the time-limit prescribed for [bringing] a private prosecution ...”

Pursuant to Article 55(1), the State Attorney is under a duty to inform the injured party within eight days of a decision not to prosecute and of that party ’ s right to take over the proceedings, as well as to instruct that party on the steps to be taken.

COMPLAINTS

33. The applicant complains under Article 3 of the Convention that the relevant authorities failed to comply with the procedural obligations.

34. He further complains under Article 6 of the Convention that a lawyer who represented him in the criminal proceedings against the attackers was interrupted by the presiding judge when giving her closing arguments and that her words were erroneously entered in the minutes of the hearing.

35. He also complains under Article 13 that he had no effective remedy in respect of his complaints under Articles 3 and 6 of the Convention.

QUESTIONS TO THE PARTIES

1. Were the procedural requirements under Article 3 of the Convention met in the present case?

2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3 as required by Article 13 of the Convention?