THIRD SECTION
\nDECISION<\/p>\n
Application no. 47040\/07
\nAn\u0111elka BISTROVI\u0106-NASTI\u0106
\nagainst Serbia<\/p>\n
The European Court of Human Rights (Third Section), sitting on 11\u00a0September 2018 as a Chamber composed of:<\/p>\n
Vincent A. De Gaetano, President,
\nBranko Lubarda,
\nHelen Keller,
\nDmitry Dedov,
\nPere Pastor Vilanova,
\nGeorgios A. Serghides,
\nJolien Schukking, judges,
\nand Stephen Phillips, Section Registrar,<\/p>\n
Having regard to the above application lodged on 18 October 2007,<\/p>\n
Having regard to the observations submitted by the parties,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Ms An\u0111elkaBistrovi\u0107-Nasti\u0107, is a Serbian citizen, who was born in 1947 and lives in Croatia. She was represented before the Court by Ms V. Ko\u010di\u0107-Mita\u010dek, a lawyer practising in Belgrade.<\/p>\n 2.\u00a0\u00a0The Serbian Government (\u201cthe Government\u201d) were represented by their Agent, Ms N. Plav\u0161i\u0107.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0The applicant and her husband, both wheelchair users, sold their flat in Belgrade in 2001 and moved in with M.P.-V. and\u010c.P., another married couple. They handed over the money thus received (67,000 deutschmarks (DEM)) to M.P.-V. and\u010c.P., who were supposed to make the ground floor of their own house accessible to wheelchair users and to cater for the applicant and her husband\u2019s needs. Although a contract to that effect was never concluded, M.P.-V. and\u010c.P. kept all the money. The applicant\u2019s husband died in 2002. She then moved to her parent\u2019s house in Croatia.<\/p>\n 5.\u00a0\u00a0On 2 September 2002 the applicant reported M.P.-V. and\u010c.P. to the police.<\/p>\n 6.\u00a0\u00a0On 22 May 2003 the public prosecutor filed an indictment against the couple, accusing them of fraud.<\/p>\n 7.\u00a0\u00a0On 5 September 2005 the applicant was summoned as a witness in the context of criminal proceedings against M.P.-V. and\u010c.P. That hearing was held on the ground floor of the court building. The applicant did not require assistance in order to attend it. At the same hearing, she filed a civil claim in the amount of DEM 67,000.<\/p>\n 8.\u00a0\u00a0Further hearings in this case were held on 2 October, 20 November and 28 December 2006. Although the applicant\u2019s presence at those hearings was not mandatory, she was entitled to attend them and indeed attended all of them, together with her lawyer. Since the hearings were held on an upper floor, court security officers had to carry her to the courtroom. The applicant also maintained that, occasionally, she had to pay someone to carry her, but she failed to provide any details in that regard.<\/p>\n 9.\u00a0\u00a0On 28 December 2006 the first-instance court convicted M.P.-V. and \u010c.P. of fraud. They were given conditional prison sentences. The court held that the accused had been supposed to return DEM 10,000 to the applicant and her husband and, with the remaining DEM 57,000, to make the ground floor of their house accessible to wheelchair users and to cater for the applicant and her husband\u2019s needs. Therefore, it ordered the accused to pay the applicant the equivalent of DEM 10,000 in Serbian dinars and instructed the applicant to pursue the remainder of her civil claim in the civil courts.<\/p>\n 10.\u00a0\u00a0On 18 April 2007 the second-instance court found that the time-limit for criminal prosecution had expired on 1 March 2007 (namely, six years after the alleged fraud had been committed) and dismissed the charges. No hearing was held in the appeal proceedings.<\/p>\n 11.\u00a0\u00a0On 26 October 2007 the applicant was awarded approximately 2,500 euros (EUR) in respect of her costs and expenses for the participation at the hearing of 5 September 2005 to which she had been summoned as a witness (when assessing that amount the court took into account her disability and awarded her a higher amount than to able-bodied witnesses).<\/p>\n 12.\u00a0\u00a0Meanwhile, the applicant instituted civil proceedings. In November 2010 the civil court awarded her EUR 33,500, default interest from 2001, and legal costs. The judgment became final on 4 April 2013. It is not known whether that judgment has been enforced or not.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 13.\u00a0\u00a0The Code of Criminal Procedure 2001 (Zakonik o krivi\u010dnompostupku, Official Gazette of the Federal Republic of Yugoslavia nos. 70\/01 and 68\/02 and Official Gazette of the Republic of Serbia nos. 58\/04, 85\/05, 115\/05, 49\/07, 122\/08, 20\/09, 72\/09, 76\/10) was in force until 2013. The victims of criminal offences were entitled to be notified of all hearings held in the case and to actively participate in those hearings in person or through a lawyer (Articles 285 and 60 of the Code). Unless summoned as witnesses, their presence was not required; however, if the public prosecutor decided to drop the charges at a hearing at which a duly notified victim failed to appear or appoint a lawyer, he or she would thus lose the right to start a subsidiary prosecution (see Article 62 of the Code). A victim was also entitled to file a civil claim within the context of criminal proceedings (see Article 201 of the Code). If so, the criminal court could accept the claim or instruct the victim to pursue civil proceedings; it could not reject the claim (see Article 206 of the Code). In accordance with Article 364 \u00a7 4 of the Code, victims were not entitled to appeal against decisions regarding their civil claims or any other aspect of a criminal case, except for decisions regarding their own costs and expenses.<\/p>\n 14.\u00a0\u00a0The Disability Discrimination Act 2006 (Zakon o spre\u010davanjudiskriminacijeosobasainvaliditetom, Official Gazette of the Republic of Serbia nos. 33\/06 and 13\/16) entered in force on 25 April 2006. It prohibits all discrimination on the basis of disability (sections 2-4 of the Act). Section\u00a013 of the Act guarantees access, without discrimination, to all facilities and services open or provided to the public. Furthermore, section\u00a033 of the Act provides that all local authorities must take appropriate measures to ensure to people with disabilities access to buildings (section 33 entered into force on 1 January 2007). In accordance with sections 157, 199 and 200 of the Obligations Act 1978 (Zakon o obligacionimodnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29\/78, 39\/85, 45\/89 and 57\/89 and Official Gazette of the Federal Republic of Yugoslavia no.\u00a031\/93) taken together with sections 39-45 of the Disability Discrimination Act 2006, a person claiming to be the victim of discrimination may seek damages and\/or an injunction in the civil courts in accordance with the general law of tort (see, for instance, judgment Rev.\u00a0229\/04 of the Supreme Court of 21 April 2004, upholding an injunction of non-repetition and public apology in a case of discrimination on the basis of race; judgment Rev. 3602\/10 of the Supreme Court of Cassation of 16 December 2010, upholding an injunction of non-repetition and an award of damages in a case of discrimination on the basis of disability; and judgment Rev. 66\/12 of the Supreme Court of Cassation of 2\u00a0February 2012, upholding an award of damages in a case of discrimination on the basis of disability). Pursuant to section 172 \u00a7 1 of the Obligations Act, all legal persons are liable for the torts committed vis-\u00e0-vis third parties by their organs in the course of, or in connection with, the exercise of their functions. This includes State liability for the conduct of its courts (see, for instance, judgment Rev. 6203\/02 of the Supreme Court of 10 November 2002).<\/p>\n 15.\u00a0\u00a0The Enforcement Procedure Act 2004 (Zakon o izvr\u0161nompostupku, Official Gazette of the Republic of Serbia no. 125\/04) was in force at the relevant time (from 22 February 2005 until 17 September 2011). It provided for the possibility of seeking an interim injunction before the introduction of civil proceedings or pending civil proceedings under certain conditions (sections 291-303 of the Act). Pursuant to section 303 of the Act, the competent court had the power to order any necessary measures.<\/p>\n