Last Updated on September 22, 2021 by LawEuro
FIRST SECTION
DECISION
Application no. 28416/14
D.K.
against Croatia
The European Court of Human Rights (First Section), sitting on 26 June 2018 as a Committee composed of:
Kristina Pardalos, President,
Ksenija Turković,
Pauliine Koskelo, judges,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 4 April 2014,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by the International Commission of Jurists (“ICJ”), the Advice on International Rights in Europe Centre (“the AIRE Centre”) and the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (“ILGA-Europe”),
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms D.K., is a Croatian national who was born in 1966. She was represented before the Court by Ms S. Bezbradica Jelavić, a lawyer practising in Zagreb. The Court decided to grant the applicant anonymity under Rule 47 § 4 of the Rules of Court.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
4. In 1986 a certain N.G. disappeared and has not been found since.
5. In 2004 a book was published alleging that N.G. had been subject to a ritual killing in one of the nearby islands. The information came from confidential reports by the former Yugoslav secret service.
6. Following the declassification of the reports, it was established that an informant of the secret service had received that information from his girlfriend, J.B., who had received it from an alleged participant in the killing, R.D.
7. In the course of further investigation, it was established that the applicant was a cousin of J.B. and that at the time of the events she had been in a same-sex relationship with R.D. It was also established that in 1988 J.B., R.D. and the applicant had spent the summer together on the island where N.G. had allegedly been killed.
8. In the meantime, R.D. left Croatia and now apparently lives in Sweden.
2. The applicant’s questioning by the police
9. On 27 May 2005 the applicant was interviewed by a police officer of the Šibenik-Knin Police Department (Policijska uprava šibensko-kninska – hereinafter “the police department”), Č.R., in connection with the above‑mentioned events. A note on the interview indicates that the applicant confirmed her friendship with R.D. and the fact that R.D. had been interested in black magic. She denied having known N.G.
10. The applicant was again interviewed by the police officers from the same police department on 10 July 2008. A note on the interview, prepared by a police officer, Ž.M., indicates that the applicant explained how she had been involved in a road accident in 1986 in which one of her friends had died. Following that event, she had started using heroin, but in 2000 she had stopped and started with drug replacement therapy. She also explained that she suffered from epilepsy. The applicant further stated that she had been in a relationship with R.D. in 1989 and that she had also been interested in black magic. She denied knowing anything concerning N.G. In the course of the interview, the applicant voluntarily presented her diary to the police officer. The note on the applicant’s interview also indicates that she agreed to submit to a polygraph test, but that such a test was not performed because she suffered from epilepsy and drug addiction.
11. The applicant interviewed again by Ž.M., the police officer, in a café bar on 3 December 2008. A note on the interview indicates that in the meantime the applicant had not remembered any details concerning the disappearance of N.G. However, the applicant remembered that in 1987 or 1988 she had spent a summer on the nearby island, where the alleged ritual killing had taken place, with J.B. and R.D. At that time, they had consumed alcohol and drugs. The applicant also stated that at the time of the events she had started using heroin and that therefore she had difficulties in remembering all the details of the events, which dated back more than twenty years. She further confirmed that it was possible that R.D. had said to her that she had witnessed the ritual killing of N.G. The applicant had not believed R.D., but it was possible that the applicant had later told that story to J.B.
12. The note on the interview contains a comment by Ž.M., the police officer, that it was possible that the applicant had lost her memory of some events in the light of the fact that she had constantly asked him the following: “Try to remind me so that I can open doors in my memory.” The police officer also stated that the applicant’s drug and alcohol abuse could have contributed to her loss of memory, and that she had not been sincere in her answers. The note contains a further comment by the police officer according to which the applicant of her own initiative started giving detailed accounts of her same-sex relationships with different persons and of her family relationship with J.B., which were not of relevance for the investigation into the disappearance of N.G. The note also indicates that the applicant exchanged phone numbers with the police officer and that she was willing to give further information if she could remember the events in question. She also stated that she was willing to undergo a polygraph test.
13. On 16 March 2011 the applicant was interviewed by Ž.M. and Č.R., the police officers. A note on the interview indicates that the applicant should have been interviewed a few days before but that it had not been possible due to the fact that she had been in hospital. In the course of the interview the applicant asked the police officers to call her on the phone and not to send her an official summons as she had had problems with her parents over the fact that she had been summoned by the police. The applicant also stated that she could not remember the events from the time of the disappearance of D.G. The interview note contains a comment according to which on her own initiative the applicant spoke for an hour about her relationship with R.D. According to the note she also explained how she had “holes in her memory” and asked the police officers to remind her of the details of the events in question. When she was presented with details of the information that the police had obtained, the applicant stated that she, together with R.D., had experimented with black magic rituals. She also asked the police officers to organise a polygraph test so that she could show that she had no further information to impart. The police officers advised her that she would not be suitable for that test as she suffered from epilepsy and had been a drug addict. Nevertheless, because the applicant insisted, she was taken to a nearby police department for the polygraph test. However, the polygraph technician refused to administer the polygraph examination on the grounds that the applicant’s overall condition prevented him from performing it.
14. The interview note also indicates that the applicant was taken home by the police officers as she stated that she had no money to buy a bus ticket. On the way to her home, the applicant explained that she had been raped as a child, but she refused to disclose the name of the person who had done it. She also promised to contact the police officers on the phone if she could remember any more details.
3. The applicant’s complaints against the police officers
15. On 11 April 2011 the applicant, through a lawyer, complained to the police department that in the course of her interviews she had been subjected to oral abuse related to her sexual orientation, mocked, interrogated, and threatened in an attempt to force her to confess to the murder of N.G. The applicant also stated that she would lodge a criminal complaint against Ž.M., the police officer.
16. In his report on the events, Ž.M. explained how he – together with his colleague Č.R. – had interviewed the applicant about matters related to the disappearance of N.G. He explained that the applicant had not wanted to be formally summoned by the police because this could have upset her mother. He further explained how the applicant had been advised of all her rights and interviewed in an office in which another police officer had also been present. The police officer also stated that the applicant’s sexual orientation had been completely irrelevant to him. Lastly, he stressed that the applicant’s complaint had been manifestly unsubstantiated and unfounded and had constituted an attempt to exert pressure on him with regard to his work on the N.G. case.
17. In his report, Č.R., the police officer, provided essentially the same information on the relevant events as had Ž.M. He stressed that the conduct of the police towards the applicant had been professional and aimed at clarifying her knowledge of the circumstances of N.D.’s disappearance.
18. On 2 May 2011 the head of the police department informed the applicant that her allegations had been unfounded. He also stressed that the applicant had never previously made any complaints concerning the conduct of the police officers in the course of the interviews.
19. On 30 May 2011 the applicant complained to the internal oversight department of the Ministry of the Interior (Odjel za unutarnju kontrolu, Ministarstvo unutarnjih poslova) of the inadequacy of the reply she had received from the head of the police department.
20. On 22 July 2011 the internal oversight department informed the applicant that it had no objection to the reply of the head of the police department.
21. In the meantime, on 30 May 2011 the applicant, through a lawyer, lodged a criminal complaint with the Šibenik Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Šibeniku) against the police officers Ž.M. and Č.R., alleging that they had threatened her with ill‑treatment during their questioning of her; made inappropriate references to her sexual orientation and asked her about her experiences of sexual intercourse with women; restricted her access to a lawyer; asked her to confess to the killing of N.G.; subjected her to a polygraph examination in 2010 during which she had been questioned about her sexual orientation and not about the disappearance of N.G.; confronted her with N.G.’s father, who had offered her 50,000 euros (EUR) to tell him what had happened to his son; and held her for eleven hours in the police station during the questioning in March 2011.
22. In the course of the investigation, upon the order of the Šibenik Municipal State Attorney’s Office, the police questioned N.G.’s father, who confirmed that he had been asked by the police officers to bring a large photo of his son to the police station and to show it to the applicant. He had complied with that request and presented the photo to the applicant, but as she had not been able to provide any information, he had left. He denied offering any money to the applicant on that occasion.
23. When questioned by the police concerning her criminal complaint, the applicant refused to discuss the matter further and referred to the allegations made in her criminal complaint.
24. In the course of the investigation, the applicant’s partner and her physician were also questioned. The applicant’s partner stated that the applicant had complained to her of provocation by the police officers concerning her sexual orientation, that she had consented to take a polygraph test even though she had not been required to do that and that the father of the missing person had offered her money to provide information on his son. The applicant’s physician explained how police had come to look for the applicant in the hospital and how the hospital director had been angry as he had considered that the applicant had been admitted to the hospital only in order to protect her from the investigation. The applicant’s physician also stated that the applicant had complained to her of threats and pressure to which she had been subjected by the police officers and of the money being offered to her in exchange for information concerning the missing person.
25. Upon the completion of the investigation, the Šibenik Municipal State Attorney’s Office forwarded the applicant’s criminal complaint to the Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta – hereinafter “the State Attorney’s Office”).
26. On 17 April 2014 the State Attorney’s Office dismissed the applicant’s criminal complaint on the grounds that there was no reasonable suspicion that a criminal offence had been committed by the police officers.
27. Following the dismissal of her constitutional complaint, the applicant tried to persuade an investigating judge of the Split County Court (Županijski sud u Splitu) to open an investigation.
28. On 12 September 2014 the investigating judge dismissed a request lodged by the applicant for further action to be taken, ruling that there was no reasonable suspicion that a criminal offence had been committed. This decision was confirmed by a three-judge panel of the Split County Court.
29. The applicant then lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske), complaining of the Split County Court’s decision refusing to open an investigation.
30. On 27 January 2015 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the Split County Court’s decision refusing to open an investigation could not be challenged by a constitutional complaint.
31. In the meantime, the applicant lodged another constitutional complaint complaining in general of ill-treatment by the police and the lack of an effective investigation in that respect. She relied on, inter alia, Articles 3, 8 and 14 of the Convention and Article 1 of Protocol No. 12.
32. On 10 January 2018 the Constitutional Court ruled in the applicant’s favour. It examined the case under Articles 3 and 14 of the Convention and found that the procedural steps taken by the police and the State Attorney’s Office fell short of the requirements of the domestic authorities’ procedural obligation.
33. On the basis of the Constitutional Court’s findings, the State Attorney’s Office resumed its inquiry into the applicant’s complaint. A number of witnesses, including the applicant, were summoned for questioning in February 2018.
B. Relevant domestic law
34. Article 23 of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) prohibits any form of ill-treatment. It also provides the protection of private life (Article 35) and prohibits discrimination (Article 14).
35. The relevant Criminal Code (Kazneni zakon, Official Gazette no. 110/1997, with further amendments), as worded at the time of the events in question, proscribed the making of serious threats (Article 129), discrimination (Article 174), ill-treatment by an official person (Article 176), the abuse of power and authority (Article 337), and the inappropriate performance of official duties (Article 339).
36. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette no. 152/2008, with further amendments) are summarised in the case of Škorjanec v. Croatia, no. 25536/14, §§ 29-30, ECHR 2017 (extracts).
COMPLAINTS
37. The applicant complained, under Articles 3, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 12, of ill-treatment by the police, discrimination related to her sexual orientation, and the lack of an effective investigation in that respect.
THE LAW
38. The applicant complained of ill-treatment by the police, discrimination related to her sexual orientation, and the lack of an effective investigation in that respect, relying on Articles 3, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 12, which, in so far as relevant, read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 8
“1. Everyone has the right to respect for his private … life, …”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as … other status.”
Article 1 of Protocol No. 12
“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such … other status.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”
A. The parties’ arguments
39. The Government submitted that the applicant had not properly raised the complaints she had made before the Court in her criminal complaint and in her request for the opening of an investigation. She had also failed to lodge a private criminal prosecution or a civil action for damages concerning the matters complained of. The Government further pointed out that the relevant investigation into the applicant’s allegations was still pending following the decision of the Constitutional Court and that therefore her complaints were premature. In any event, in the Government’s view, the investigation that had been conducted into the applicant’s complaints had been effective and had not disclosed any ill treatment or discrimination against the applicant.
40. The applicant argued that she had explicitly raised the issue of Article 3 of the Convention in her criminal complaint and had properly pursued the relevant criminal-law remedies in this respect. In her view, a civil action for damages had not constituted a remedy to be exhausted within this context. The applicant also argued that the Constitutional Court had not ruled on all the aspects of her complaint and that the manner in which the State Attorney’s Office proceeded with the case following the Constitutional Court’s ruling had been ineffective and would only protract the investigation into her complaints.
B. The Court’s assessment
41. The Court finds that it is not necessary to address all of the Government’s objections as the complaints are in any event inadmissible for the following reasons.
42. The Court refers to the general principles on the requirement of exhaustion of domestic remedies set out in the case of Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69‑77, 25 March 2014).
43. The Court notes that following a favourable Constitutional Court’s decision, duly addressing the central issues of the applicant’s complaints and finding a breach of the procedural obligation under Article 3 taken in conjunction with Article 14 of the Convention, the State Attorney’s Office has resumed its inquiry into the applicant’s complaints (see paragraphs 32-33 above). At present, the proceedings are still pending before theState Attorney’s Office, which has summoned the applicant and further witnesses for questioning.
44. Accordingly, given the present stage of the relevant criminal investigation at the domestic level, an examination of the applicant’s complaints would be premature (compare B.V. and Others v. Croatia (dec.), no. 38435/13, § 161, 15 December 2015).
45. Having said that, the Court is mindful of the length of the relevant criminal investigation at the domestic level. However, it would stress that the length of proceedings, in the context of the State’s procedural obligation must be viewed against the particular circumstances of the case, taken as a whole (see, for instance, Sarbyanova-Pashaliyska and Pashaliyska v. Bulgaria, no. 3524/14, §§ 38-41, 12 January 2017). It therefore finds, given the factual complexity of the case and the current stage of the domestic proceedings, that it would be premature to draw any firm conclusions from this perspective as to the effectiveness of the relevant procedural response of the domestic authorities.
46. The Court would also stress that it remains open for the applicant, following the termination of the relevant proceedings at the domestic level, and the exhaustion of the domestic remedies in this respect (see, in particular, Pavlović and Others v. Croatia, no. 13274/11, § 32, 2 April 2015), or if the proceedings continue to be unreasonably protracted by the domestic authorities, to bring her complaints before the Court if she still considers herself to be victim of a violation of the Convention.
47. Against the above background, the Court finds that the applicant’s complaints are premature and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 July 2018.
Abel Campos Kristina Pardalos
Registrar President
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