Last Updated on November 2, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 39894/11
Mesud REKIĆ
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 6 March 2018 as a Committee composed of:
Carlo Ranzoni, President,
Faris Vehabović,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 6 June 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr MesudRekić, is a citizen of Bosnia and Herzegovina, who was born in 1953 and lives in Cazin. He was represented before the Court by Mr E. Alagić, a lawyer practising in Bihać.
2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms B. Skalonjić.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 30 September 2002 the applicant, acting on his own behalf and on behalf of his son A.R., who was a minor at the time, lodged a criminal complaint with the Cazin Municipal Court (“the Municipal Court”) against M.R., R.R. and Ad.R. The applicant alleged that on 4 September 2002 those persons had inflicted minor bodily harm on him and his son. He did not lodge a claim for damages.
5. On 24 February 2003 the Municipal Court found M.R. guilty of causing the applicant minor bodily harm and sentenced him to one month’s imprisonment, suspended for a period of one year. R.R. and Ad.R. were acquitted. In accordance with Article 101 of the 1998 Code of Criminal Procedure (see paragraph 16 below), the applicant was instructed to submit a claim for damages before a civil court.
6. Both the applicant and M.R. appealed against that judgment. On 12 April 2004 the Bihać Cantonal Court (“the Cantonal Court”) quashed the judgment of 24 February 2003 and remitted the case for re-trial. It found that the Municipal Court had failed to examine the part of the criminal complaint concerning the applicant’s son.
7. On 26 May 2010 the Municipal Court discontinued the proceedings noting that the limitation period for prosecuting the offence allegedly committed by M.R., R.R. and Ad.R. had expired. The offence had allegedly been perpetrated on 4 September 2002 and the last procedural step had been taken on 12 April 2004 when the Cantonal Court’s judgment was delivered to the parties (see paragraph 6 above). Article 121 § 6 of the 1998 Criminal Code provided that the statutory limitation period for minor bodily harm was two years calculated from the time the offence was committed. Article 122 of the same Code provided that the prosecution was absolutely barred in all cases if the time elapsed since the perpetration of the offence was more than twice the limitation period (see paragraph 13 below). In the case at hand, the absolute time-barring occurred on 5 September 2006.
8. The applicant appealed. On 20 July 2010 the Cantonal Court upheld the decision of 26 May 2010 to discontinue the proceedings.
9. On 27 August 2010 the applicant lodged an appeal to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) complaining that he had been deprived of effective access to a court.
10. On 21 December 2010 the Constitutional Court decided that it lacked jurisdiction rationemateriaeto examine the case because neither Article 6 of the Convention nor Article II/3.e) of the Constitution of Bosnia and Herzegovina guaranteed the right to bring criminal proceedings against a third party or to secure a conviction. This decision was delivered to the applicant on 11 January 2011.
B. Relevant domestic law
1. Minor bodily harm
11. Article 178 of the 1998 Criminal Code (Official Gazette of the Federation of Bosnia and Herzegovina, “OG FBH”, nos. 43/98 2/99, 15/99, 29/00 and 59/02), as in force at the relevant time, made it an offence to inflict actual minor bodily harm, defined as an injury to health. The maximum penalty on conviction was one year’s imprisonment.
12. Minor bodily harm was privately prosecuted (Article 178 § 4 of the Code). The prosecution was thus brought directly by the victim of the offence and not by the public prosecutor.
2. Limitation periods for the prosecution of criminal offences
13. Pursuant to Article 121 § 1 of the 1998 Criminal Code, the prosecution of an offence was barred after a certain period of time. That period varied in relation to the penalty provided for the offence and ranged from thirty-five years for offences punishable by long-term imprisonment to two years for offences punishable by one year’s imprisonment or less (Article 121 § 1 (1) and (6)). The period started to run from the commission of the offence (Article 122 § 1 of the Code) and was interrupted by every act effected by the competent authorities with a view to prosecuting the offender (Article 122 § 3 of the Code). Such interruptions notwithstanding, prosecution was no longer possible if the time elapsed since the perpetration of the offence was more than twice the limitation period (Article 122 § 6 of the Code). Accordingly, the prosecution of an offence punishable by one year’s imprisonment or less, such as minor bodily harm, was absolutely barred after the expiration of four years (two times two years) from its perpetration.
14. Upon the expiration of the limitation period, the proceedings against the alleged offender had to be discontinued (Article 344 of the 1998 Code of Criminal Procedure, OG FBH nos. 43/98, 15/99 and 29/00).
3. Tort claims in civil proceedings and in the context of criminal proceedings
15. Article 200 of the 1978 Civil Obligations Act (Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85 and 57/8, and Official Gazette of the Republic of Bosnia and Herzegovina nos. 2/92, 13/93 and 13/94) provides, inter alia, that anyone who has suffered physical pain or mental anguish as a consequence of fear, a breach of personal integrity, liberty or of other personal rights is entitled to seek non-pecuniary compensation. Therefore, the victim of a tort has the choice of bringing a claim against the alleged tortfeasor in the civil courts or of making a civil-party claim in the context of criminal proceedings, if any are brought (Article 96 of the 1998 Code of Criminal Procedure and section 377 of the 1978 Civil Obligations Act).
16. If the criminal proceedings are discontinued the claim will not be examined, but it may be brought separately in a civil court. The criminal court rules on the claim only when giving a judgment on the merits of the criminal case and only if it finds that the accused is guilty. In the case of acquittal, the criminal court will instruct the victim of a tort to bring his or her claim before a civil court (Article 101 of the 1998 Code of Criminal Procedure).
17. The claim for damages against the alleged tortfeasor in a civil court becomes statute-barred at the same time as the criminal prosecution (section 377 of the 1978 Civil Obligations Act). All tort claims are extinguished with the expiration of five years after the commission of the tort (section 376 § 2 of the 1978 Act).
COMPLAINT
18. The applicant complained under Article 6 § 1 of the Convention that he had been denied effective access to a court as a result of the discontinuation of the criminal proceedings against M.R., R.R. and Ad.R.
THE LAW
19. The applicant alleged a breach of his rights under Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations …, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”
A. The parties’ submissions
20. The Government submitted that the applicant had failed to exhaust domestic remedies. He had neither lodged a civil-party claim in the context of the criminal proceedings nor brought an action in the civil courts, as instructed by the Municipal Court’s judgment of 24 February 2003 (see paragraph 5 above). He had thus placed himself in a position of not being able to vindicate his right to damages. The Government further argued that Article 6 § 1 of the Convention did not apply to the facts of the case as the applicant had not made a civil-party claim in the criminal proceedings in question. They also submitted that the applicant had given incomplete information to the Court concerning his complaint: he had omitted to clarify that he had not asked for damages before the domestic courts. The Government suggested, therefore, that the applicant had abused his right of application, and that accordingly, his application should be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
21. The applicant maintained his complaint.
B. The Court’s assessment
22. The Court considers that it is not necessary to examine the Government’s objections since the application is in any event manifestly ill-founded for the following reasons.
23. The procedural guarantees laid down in Article 6 secure to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal. The Court has held that this right of access to a court includes not only the right to institute proceedings but also the right to obtain a “determination” of the dispute by a court (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 86, ECHR 2016 (extracts)).
24. The Convention does not confer any right to “private revenge” or to an actiopopularis. Thus, the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently: it must be indissociable from the victim’s exercise of a right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004‑I). Where the domestic legal order provides litigants with an avenue of redress, such as a civil claim in the context of criminal proceedings, the State is under an obligation to ensure that they enjoy the fundamental guarantees laid down in Article 6 § 1 (see Anagnostopoulos v. Greece,no. 54589/00, § 32, 3 April 2003, and Dinchev v. Bulgaria, no. 23057/03, § 50, 22 January 2009).
25. Turning to the present case, the Court notes that the applicant had at his disposal two avenues to obtain a determination by a court of his civil claim for damages. One avenue was to lodge a civil claim in the context of the criminal proceedings which he initiated on 30 September 2002. The other avenue was to bring civil proceedings for damagesbefore the civil courts; this latter remedy was independent of criminal proceedings, as the domestic law does not require the results of criminal proceedings to be available before a civil action can be pursued, (see paragraph 15 above). The applicant was indeed instructed to do so by the Municipal Court on 24 February 2003 (see paragraph 5 above).
26. The applicant decided to ignore the invitation of the Municipal Court and did not initiate civil proceedings before the end of his criminal case. Moreover, unlike in the cases of Anagnostopoulos and Dinchev(bothcitedabove) hedidnotlodge a claim for damages in the criminal proceedingswhichheinitiated, limitinghimself to a purely criminal action (see paragraph4above; seealso, mutatismutandis, Torday v. Serbia (dec.), no. 19728/08, 19 September 2017).
27. Accordingly, the Court finds that the respondent State’s authorities did not prevent the applicant from having his civil claim determined by the domestic courts, since he had two legal avenues at his disposal and he failed to make use of either of them. It follows that the application is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 29 March 2018.
Andrea Tamietti Carlo Ranzoni
Deputy Registrar President
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