SECOND SECTION

DECISION

Application no. 63344/17 Viktor ZAHTILA and Goran KOLETIĆ against Croatia

The European Court of Human Rights (Second Section), sitting on 7 November 2023 as a Committee composed of:

Pauliine Koskelo , President , Lorraine Schembri Orland, Davor Derenčinović , judges ,

and Dorothee von Arnim, Deputy Section Registrar,

Having regard to the above application lodged on 22 August 2017,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicants, Mr Viktor Zahtila and Mr Goran Koletić, are Croatian nationals who were born in 1984 and 1985 and live in Zagreb and Ivanić Grad respectively. They were represented before the Court by Ms N. Labavić, a lawyer practising in Zagreb.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicants complained, under Articles 3 and 14 of the Convention, about the lack of an appropriate procedural response of the domestic authorities to an act of violence they had suffered on 7 May 2016 at the hands of private individuals motivated by their sexual orientation.

4 . On 19 January 2023 the Constitutional Court adopted a decision upholding the applicants’ constitutional complaint and finding a violation of their rights guaranteed by Article 23 § 1 of the Constitution in its procedural aspect, read in conjunction with Article 14 of the Constitution. The said provisions correspond to Articles 3 and 14 of the Convention. In the same decision, relying on the relevant case-law of the Court (see Sabalić v. Croatia , no. 50231/13, 14 January 2021), the Constitutional Court quashed the decisions of the domestic authorities by which the applicants’ criminal complaint against the alleged perpetrators had been dismissed. Consequently, the criminal investigation at the domestic level has been continued, the criminal offences in question not having become time-barred. The Constitutional Court made no award in respect of just satisfaction since no claim had been made in the applicants’ constitutional complaint.

5. Consequently, by a letter dated 7 February 2023, the Government invited the Court to declare the application inadmissible. By a letter of 8 March 2023, the applicants disagreed, stating that no new decision had been adopted in the criminal proceedings and that they maintained their application lodged with the Court.

THE LAW

6. The Court considers that it must first ascertain whether the new fact brought to its attention – namely the Constitutional Court’s ruling in the applicants’ case (see paragraph 4 above) – may lead it to conclude that it is no longer justified to continue the examination of the application (see, for example, Association SOS Attentats and de Boery v. France (dec.) [GC], no. 76642/01, § 29, ECHR 2006 ‑ XIV), and whether the application may consequently be struck out of its list of cases in accordance with Article 37 § 1 of the Convention.

7. The Court reiterates that it enjoys a wide discretion in identifying grounds capable of being relied upon in striking out an application on this basis, it being understood, however, that such grounds must reside in the particular circumstances of each case (see, for example, Association SOS Attentats and de Boery , cited above, § 37; and Oya Ataman v. Turkey (striking out), no. 47738/99, § 24, 22 May 2007).

8. In the present case, the Constitutional Court expressly acknowledged that there had been a breach of the procedural limb of Article 3 of the Convention, read in the light of Article 14, in that the domestic authorities had not conducted an effective investigation into a violent homophobic attack against the applicants. It further quashed the domestic authorities’ decisions which had dismissed their criminal complaint in that respect and the criminal investigation continued. On the other hand, it did not award the applicants any non-pecuniary damage since they had made no such claim in their constitutional complaint.

9. The applicants wished to pursue their application before the Court claiming that, apart from the Constitutional Court’s decision, no further decisions have been adopted at the domestic level to put right the violation they had suffered. The Court has already held that Constitutional Court’s decisions had a binding effect and that the domestic authorities were under an obligation to implement them in matters of their competence (see Kušić and Others v. Croatia (dec.), no. 71667/17, §§ 38 and 97, 10 December 2019). What is more, following the Constitutional Court’s decision, in the present case the criminal investigation into the violent attack against the applicants has been continued and is currently ongoing (see paragraph 4 above). Accordingly, the Court has no reason to doubt that following the Constitutional Court’s decision in the present case the prosecuting authorities remain under a legal obligation to resume and continue the investigation into the violent homophobic attack against the applicants, taking into account the Constitutional Court’s findings as to the specific deficiencies that it identified in that investigation (see Škrpan v. Croatia (dec.), no. 41317/15, §§ 46-47, 8 December 2020).

10. Moreover, the Court does not find it unacceptable that, in ruling on their constitutional complaint, the Constitutional Court did not award the applicants any non-pecuniary damages, being guided by one of the fundamental principles of procedure under domestic and international law ne eat iudex ultra et extra petita partium (“not beyond the request”) (see Radomilja and Others v. Croatia ([GC], nos. 37685/10 and 22768/12, § 109, 20 March 2018; and compare Škrpan , cited above, § 42).

11. In view of the above, the Court is satisfied that respect for human rights as defined in the Convention (Article 37 § 1 in fine ) does not require it to continue its examination of the present case and considers it appropriate to strike the application out of the list in accordance with Article 37 § 1 (c) of the Convention. This conclusion is without prejudice to the national authorities’ continuing obligation to conduct an investigation in compliance with the requirements of the Convention (see Žarković and Others v. Croatia (dec.), no. 75187/12, § 23, 9 June 2015) or to any decision the Court might take to restore the case to its list of cases pursuant to Article 37 § 2 of the Convention, should the national authorities fail to fulfil that obligation.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases.

Done in English and notified in writing on 30 November 2023.

Dorothee von Arnim Pauliine Koskelo Deputy Registrar President