ITEMID: 001-84067
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SADAUSKIENE v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs Krestina Sadauskienė, is a Lithuanian national who was born in 1948 and lives in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 June 1998 the applicant’s 17-year-old son took part in a schoolchildren’s outdoor camp near the Girija lake in the Vilnius region, uniting over 100 pupils and their supervisors. The applicant’s son came with a group of 22 pupils, supervised by three teachers.
On 13 June 1998 the police were alerted that the boy had gone missing.
On 14 June 1998 the corpse of the applicant’s son was found in the lake.
On the same date the police carried out an examination of the place of the incident and questioned several witnesses. An autopsy of the body began the same day and was completed on 18 June 1998. 1.43% of alcohol was found in his blood, but the body carried no signs of violence. The experts referred to the likelihood that the boy had drowned while swimming in the lake.
The applicant applied to the prosecutors, claiming that her son may have been murdered, and that the schoolteachers had not performed their duty of supervision.
On 1 July 1998 a Vilnius area district prosecutor refused to institute criminal proceedings in respect of the death of the applicant’s son.
On 7 July 1998 a higher prosecutor quashed this decision, ordering further investigation in order to confirm or rule out the hypothesis of a violent death. He instructed the prosecution to question all the schoolchildren who had gone to the camp with the applicant’s son and to examine the scene of the incident, the pictures of the deceased taken by the applicant just before the funeral, as well as, her son’s belongings in order to establish the origin of the blood stains noticeable on some of them.
From 9 July 1998 to 17 August 1998, the prosecution questioned 14 witnesses, including the applicant, accepted the opinion of a medical expert, repeatedly examined the place of the incident and conducted an inquiry into a possible fight among the campmates. Furthermore, from 16 to 30 July 1998, a biological DNA examination of the belongings of the applicant’s son was performed. The expert found some blood stains on the T-shirt of the victim but, because of the small amount of blood involved, it was not possible to establish its origin.
On 17 August 1998 a Vilnius area district prosecutor again took a decision to refuse to institute criminal proceedings in view of the absence of any indication of a violent death. The prosecutor referred to the results of the autopsy and the DNA examination, as well as the submissions of various witnesses.
The applicant complained, requesting further details to be assessed.
On 25 August 1998 a higher district prosecutor quashed the decision, ordering, inter alia, the questioning of all the participants of the camp, the divers who had found the corpse, and certain other people.
In accordance with that order, the prosecution carried out additional investigative measures; in particular, the submissions of 52 witnesses were recorded, experts were questioned, the police and other relevant officials were called upon to conduct an inquiry into certain details of the incident, and further inspections of the scene of the incident was carried out.
On 29 January 1999 a Vilnius area district prosecutor refused to institute criminal proceedings in relation to the death of the applicant’s son (Article 104 of the Criminal Code as then in force). Nor did the prosecutor consider that there were any grounds for the criminal prosecution of the schoolteachers or organisers of the camp for the allegedly improper execution of their official duties (Article 288). The applicant was advised that she could claim damages by way of civil proceedings.
The applicant and her husband addressed the General Prosecutor’s Office, submitting further details and requesting an additional inquiry.
On 25 June 1999 a prosecutor in the Office of the Prosecutor General quashed the decision, ordering additional investigative measures, including the questioning of new witnesses, the examination of the towel of the deceased, an inquiry into the hypothesis that there may have been a fight at the camp, and a request for information about the meteorological conditions on the day of the incident.
On 29 July 1999 the applicant reported that she had received an anonymous letter referring to the alleged “murderers” of her son.
An inquiry into these newly discovered details was carried out, including the questioning of 10 witnesses.
On 7 September 1999 a Vilnius area district prosecutor again refused to institute criminal proceedings on the same grounds as before. The applicant appealed, alleging that the prosecution had not made an adequate investigation into the anonymous letter.
On 2 November 1999 a Vilnius regional prosecutor quashed the decision, instituting criminal proceedings into the death of the applicant’s son. Thereafter, the investigation was prolonged a number of times. During a further examination, 46 witnesses were questioned, some of them repeatedly, several confrontations of the witnesses were undertaken, additional information about the camp participants was gathered, the version of a possible fight in the camp was again assessed, writing samples were taken and an expert examination of the anonymous letter carried out, and several experts were heard.
On 1 May 2000 the district prosecutor decided to discontinue the criminal proceedings. It was noted, inter alia, that no evidence of a violent crime could be found, despite the questioning of numerous witnesses and experts.
The applicant filed a hierarchical complaint, requesting the quashing of the decision of 1 May 2000.
On 16 June 2000 the Office of the Prosecutor General refused her request, stating that the decision to discontinue the investigation was lawful and substantiated. The applicant was advised that she could request judicial review of the decision of 1 May 2000.
On 27 November 2001 the applicant applied to the Vilnius District Court, asking it to reinstate the time-limit to complain about the decision of 1 May 2000.
On 1 March 2002 a judge the Vilnius District Court granted her request, quashed the decision of 1 May 2000 and ordered the Vilnius area district prosecutors to carry out further investigative measures, including the questioning of the applicant and her husband, as well as establishing the identity of certain persons with whom the applicant’s son could have had contact in the camp. The judge also referred to the pictures of the corpse that the applicant had made after the autopsy which allegedly showed signs of violence on the boy’s face, and ordered them to be submitted to an expert. The judge noted that it was not clear from the case file whether these particular pictures had been the subject of an expert examination before.
The criminal investigation was renewed. Between 18 and 22 April 2002 a repeat medical expert examination of the pictures was carried out, in order to establish the credibility of the version of a violent death. The experts confirmed that no signs of violence could be identified from the pictures taken before the funeral. It was noted that the pictures taken by the applicant just before the burial exhibited some marks on the face of the boy. Whereas the applicant considered them to be signs of violence, the experts explained that the marks were the result of the fact that the body had stayed in the water.
On 22 April 2002 the prosecutor discontinued the investigation because of the lack of evidence of a crime.
On 7 May 2002 a Vilnius regional prosecutor quashed the decision, referring, inter alia, to the need to question witnesses and obtain supplementary data about the participants at the camp. The case was sent to the Vilnius city district prosecutors, who again reinstated the investigation on 13 May 2002. The further questioning of witnesses and experts as well as a confrontation were held.
On 13 June 2002 the Vilnius city district prosecutor discontinued the investigation in view of the absence of evidence of the crime of murder or the improper execution of official duties.
On 19 July 2002 the Vilnius regional prosecutor quashed the decision, ordering, inter alia, the questioning of further witnesses and the characterisation of certain participants at the camp.
On 23 July 2002 the investigation was again renewed by the Vilnius city district prosecutors and further investigative actions were carried out, including the questioning of eight witnesses.
On 23 October 2002 a Vilnius city district prosecutor adopted a 23-page long decision, discontinuing the criminal investigation in view of the absence of evidence of a crime under the then Articles 104 and 288 of the Criminal Code. It was concluded that the applicant’s son had drowned in the lake from swimming whilst under the influence of alcohol, and that he had been responsible for his own death. The decision was based on the submissions of 46 witnesses, some of whom had been confronted, in order to eliminate contradictions in the evidence, the results of four expert examinations, the expert submissions, as well as other evidence.
On 3 December 2002 the Vilnius Region Prosecutors’ Office rejected the applicant’s hierarchical appeal. It was noted that the investigation had been thorough: 73 witnesses had been questioned, some of them many times; the examination of the place of the incident had been carried out three times; two medical examinations and a DNA examination of the blood sample had been completed, but with no result because of the small amount of blood involved; experts were questioned and a handwriting analysis of the anonymous letter had been performed. There was no evidence to indicate that the boy had been the victim of violence, despite the attempts to examine the numerous versions put forward by his parents. All hypotheses had been dutifully verified, inter alia, by questioning the relevant experts and the witnesses, some of whom had been heard several times but had not been able to provide any new information.
The applicant applied to a court.
On 23 January 2003 the Vilnius City First District Court examined the applicant’s appeal in a written procedure and rejected it. It noted that the main source of objective evidence – the expert examination of the corpse and the pictures. This hypothesis was corroborated by the submissions of various witnesses and other evidence. The court opined that all possible means to obtain evidence had been exhausted. That decision was final.
On 25 August 1998 the three schoolteachers who had accompanied the applicant’s son to the camp received a disciplinary reprimand for their failure to ensure the safety of the camp participants.
On an unspecified date the applicant brought civil proceedings for damages against the employer of those teachers – a State-run school. She claimed 9,379 Lithuanian litas (“LTL”; approximately 2,718 euros) to cover the funeral expenses. Whereas the applicant’s claims were rejected at first and second instance by, respectively, the Vilnius City Third District on 20 December 2000 and the Vilnius Regional Court on 14 February 2001, the Supreme Court reversed those decisions on 11 June 2001, holding that the school was liable to cover the expenses of the funeral of the applicant’s son. The Supreme Court reduced the amount claimed to LTL 7,500 (approximately EUR 2,174), referring to the fact that the applicant’s son had been largerly responsible for his own death. The applicant did not claim non-pecuniary damages.
The Criminal Code applicable at the material time punished murder (Article 104) and the improper execution of official duties (Article 288).
The Code of Criminal Procedure (in force from 12 June 1998 to 23 January 2003) provided:
Article 5
“Criminal proceedings shall not be instituted or ... shall be discontinued in the following cases:
1) where no crime has occurred...”
Article 128
“The prosecutor ... shall receive the applications and reports of a crime ... and shall take a relevant decision within three or, in exceptional circumstances, ten days from the receipt of the application or report.
The necessary material shall be obtained and submissions taken, but no investigative actions foreseen in this Code shall be carried out.
One of the following decisions shall be taken regarding the application or report:
- to institute criminal proceedings;
- to refuse to institute criminal proceedings ... .
The applicant shall be informed about the decision taken.”
Article 131
“Where no grounds for the institution of criminal proceedings are established ... the prosecutor ... or the court shall refuse to open criminal proceedings. ... The person concerned who submitted an application [about the alleged criminal acts], shall be informed about that decision as well as about his/her right to appeal against it.
The decision of the prosecutor ... to refuse to institute criminal proceedings can be challenged before the higher prosecutor or a court ... .”
Article 244 of the Code stipulated that the actions and decisions of the prosecutor could be challenged before a higher prosecutor or, since 17 April 2002, before a court.
Article 244-2 provided for the judicial review of the actions and decisions of the prosecutor, stipulating as follows:
“The prosecutor and the complainant may attend the hearing... . The complainant shall be informed about the court’s decision ... . That decision shall be final.”


ITEMID: 001-109289
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MELNITIS v. LATVIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1969 and lives in Rencēni parish in Latvia.
6. On 19 May 2005 the applicant was placed in cell no. 26 in a remand wing of Valmiera Prison.
7. On 14 October 2005 the Valmiera District Court (Valmieras rajona tiesa) convicted the applicant of resistance to a public official and sentenced him to three years’ imprisonment but suspended the sentence. It appears that no appeal was lodged against this judgment.
8. On the same date, the court ordered the applicant’s release.
9. According to the applicant, the cell where he was placed together with other detainees had been very poorly lit and poorly ventilated. The toilets had not been separated from the living area and had emitted a foul smell that had lingered in the air. Detainees had thus been forced to eat their meals in close proximity to the toilets. The applicant also alleged that the cell had been overpopulated, each detainee having had less than the domestic standard of 2.5 sq. m of living space per male adult detainee.
10. The Government disagreed with the applicant’s version of facts. They noted that cell no. 26 had had artificial and natural light and a ventilation system and they submitted that the toilet area in the cell had been separated off with a screen. The Government submitted that cell no. 26 had measured 23.6 sq. m. and had accommodated no more than eight detainees at a time, including the applicant.
11. In addition, the applicant contended that he had not received any personal hygiene products, save for a quarter of a bar of laundry soap. He had not been provided with toilet soap, a toothbrush, toothpaste and toilet paper, in violation of domestic law (see paragraph 21 below).
12. The Government did not deny that the applicant had not been provided with these products.
13. On an unspecified date in October 2005 the applicant had received 200 g of laundry soap, one toothbrush, 50 g of toothpaste and one 30 m roll of toilet paper.
14. On 13 July 2005, upon the applicant’s complaint addressed to the prosecutor’s office, the Prisons Administration (Ieslodzījuma vietu pārvalde) informed him that the prison lacked the financial resources to provide him with the personal hygiene products as laid down in Cabinet Regulation no. 339 (2002).
15. On 8 August 2005 the Valmiera Prison administration confirmed that there were no financial resources to provide the relevant personal hygiene products, save for one 200 g bar of laundry soap per month.
16. On 22 July 2005 the National Human Rights Office replied to the applicant in general terms that they had found during their onsite visits that penal institutions did not comply with many legal requirements. They noted, among other things, that they had drawn the attention of the relevant domestic authorities in March 2005 to insufficient financial resources having been allocated to the purchase of personal hygiene products. Finally, the applicant was informed of his right to submit an individual petition to the Court.
17. Prior to 2011, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) had not visited Valmiera Prison, where the applicant was placed during his pre-trial detention.
18. However, during its ad hoc visit from 5 to 12 May 2004 to several police headquarters (in Daugavpils, Liepāja and Ventspils) and prisons (in Rīga and Daugavpils) it noted that detainees and prisoners were not provided with basic personal hygiene products and recommended that immediate steps be taken to ensure that all detainees and prisoners be provided with adequate quantities of essential personal hygiene products (see paragraphs 20 and 60 of the relevant report: CPT/Inf (2008) 15). The CPT also found that toilets were not adequately partitioned off in a number of cells.
19. In its response, the Latvian Government (see the relevant document: CPT/Inf (2008) 16) noted that due to a lack of funding it was not possible to fully comply with the CPT’s recommendations. The Government noted that prisoners could purchase the necessary products in a prison shop. At the same time, they noted that prison authorities used humanitarian aid to help prisoners who did not have sufficient financial means.
20. The European Prison Rules, adopted on 11 January 2006, are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates. The relevant parts read as follows:
“18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.
18.2 In all buildings where prisoners are required to live, work or congregate:
a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;
b. artificial light shall satisfy recognised technical standards; and
c. there shall be an alarm system that enables prisoners to contact the staff without delay.
18.3 Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law.
...
19.5 Prisoners shall keep their persons, clothing and sleeping accommodation clean and tidy.
19.6 The prison authorities shall provide them with the means for doing so including toiletries and general cleaning implements and materials.”
21. Cabinet Regulation no. 339 (2002), in force at the material time and effective until 20 June 2008, laid down the standards governing the basic personal hygiene products to be provided to detainees. A healthy adult male detainee was to receive 200 g of laundry soap, 50 g of toothpaste and one 30 m roll of toilet paper every month and one toothbrush every six months. No toilet soap was to be provided.
22. Cabinet Regulation no. 211 (2003), in force at the material time and effective until 1 April 2006, laid down the standards governing detention conditions in remand wings of prisons. It contained no provision on the partitioning off of toilets in cells.
23. Subsequently, the requirement to separate the toilet from the rest of the cell was laid down, initially, in cabinet regulations and, later, in law.
24. The Law of Administrative Procedure (Administratīvā procesa likums) took effect on 1 February 2004. It provides for the right to challenge administrative acts (administratīvais akts) and actions of a public authority (faktiskā rīcība) before the administrative courts.
25. At the material time, section 89 of the Law of Administrative Procedure defined an action of a public authority as “an action within the sphere of public law which is not aimed at issuing an administrative act, provided that its results have or might infringe the rights or legal interests of an individual concerned”. An action of a public authority also included “an omission on the part of a public authority provided that such authority has an obligation under the law to take a specific action”. The 2006 amendments to the Law, which took effect on 1 December 2006, further clarified this definition.
26. Under section 92 of the Law of Administrative Procedure everyone has the right to receive appropriate compensation for pecuniary and non-pecuniary damage caused by an administrative act or action of a public authority. Under section 93 of the same Law, a claim for compensation can be submitted either together with an application to the administrative courts to have an administrative act or action of a public authority declared unlawful or to the public authority concerned following a judgment adopted in such proceedings.
27. In its annual report dedicated to human rights issues in Latvia for the year 2005, the National Human Rights Office (VCB), noted that prisoners most commonly complained about the conditions of their detention and, in particular, about the lack of separation of toilets from other cell areas. Although they had paid a visit to Valmiera Prison, the report did not describe the results of that visit in full. It was merely stated that:
“The VCB has concluded that improvement in conditions of detention is connected to the lack of funding and that in many prisons, for example in ... Valmiera Prison, it will be impossible to ensure normal conditions of detention without construction works.
Therefore, in spring 2005 the VCB sent a letter to the Prime Minister, pointing out the possible problems [that might occur] if detainees were to lodge applications under Article 3 of the Convention with the Court. Regrettably, the competent authorities did not always follow the VCB’s recommendations and the VCB [was left with no other possibility than to] advise detainees to lodge applications with the Court. [If] any improvements had been made, the VCB had not been informed of them”.
28. On 1 December 2006 the Supreme Court issued a compilation and analysis of the domestic case-law on definition and interpretation of the administrative law concept of an action of a public authority (Tiesu prakses apkopojums par faktiskās rīcības jēdzienu un interpretāciju). It was noted that only some 10% of cases before the administrative courts had concerned actions of a public authority.
VIOLATED_ARTICLES: 3


ITEMID: 001-71461
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF DROZDOWSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Violation of Art. 34;Remainder inadmissible;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1965 and lives in Brzeg, Poland.
5. On 26 January 2000 the applicant was remanded in custody on a charge of robbery. On 31 July 2000 he was convicted as charged and sentenced to a prison term.
6. The applicant appealed against his conviction but his appeal was dismissed on 20 December 2000 by the Warsaw Court of Appeal (Sąd Apelacyjny).
7. On 13 March 2002 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal.
8. The first page of the applicant’s first letter to the Court of 26 May 2000, which was delivered to the Court on 19 July 2000, bears a stamp: “Censored on – [a handwritten date]: 14.07.2000, judge: [an illegible signature]” (Ocenzurowano dnia – 14.07.2000, sędzia [podpis nieczytelny]). The same stamp and signature are marked on the third page of the letter. Moreover, two words have been obscured with a felt-tip pen on the last page of the letter. The left side of the envelope in which the letter was delivered was opened and subsequently sealed with Sellotape.
9. Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the 1997 Code”) which entered into force on 1 September 1998.
10. The relevant part of Article 103 § 1 of the Code provides as follows:
“Convicts (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. Correspondence in those cases (...) shall be sent to the addressee without delay and shall not be censored.”
11. Article 214 § 1 reads as follows:
“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”
12. Article 217 § 1 reads, in so far as relevant, as follows:
“(...) detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”
13. Article 242 § 5 reads as follows:
“The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.”
14. On 1 September 1998 the Rules of Detention on Remand (Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu wykonywania tymczasowego aresztowania) entered into force.
§ 36 of the Rules provides:
“A detainee’s correspondence, including correspondence with the international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, with the Ombudsman and public and local government institutions, is mailed through the intermediary of the authority at whose disposal he remains.”
§ 37 provides:
“1. If the authority at whose disposal [a detainee] remains ceases to censor correspondence, it shall be subject to the supervision or censorship by the prison administration, except for cases referred to in Article 73 of the Code of Criminal Procedure and Articles 102 (11) and 103 of the Code [of Execution of Criminal Sentences].
2. The correspondence of a detainee shall be supervised by the administration of the detention centre when necessary in the interest of protecting social interest, the security of a detention centre or requirements of personal re-education.
3. The supervision referred to in paragraph 2 shall be executed by controlling the content of the correspondence and acquainting oneself with its wording.
4. The correspondence referred to in Articles 8 § 3, 102 (11) and 103 § 1 of the Code [of Execution of Criminal Sentences] may be only subjected to the control of its content [kontrola zawartości], which shall take place in the presence of a detainee.”
15. § 38 provides:
“2. Censorship shall mean deleting a part of text or making it illegible, whereas seizing correspondence shall mean not transmitting it to a detainee and placing it in his file.”
VIOLATED_ARTICLES: 34
8


ITEMID: 001-57553
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1984
DOCNAME: CASE OF ÖZTÜRK v. GERMANY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-3-e;Just satisfaction reserved
JUDGES: C. Russo
TEXT: 9. Mr. Öztürk, a Turkish citizen born in 1934, is resident at Bad Rappenau-Heinsheim in the Federal Republic of Germany.
He arrived in the Federal Republic in 1964 and works in the motor-car industry. After passing the necessary test, he was issued with a German driving licence on 7 May 1969.
In 1978, he estimated his net monthly income at approximately DM 2,000.
10. On 27 January 1978 in Bad Wimfen, the applicant drove his car into another car which was parked, causing about DM 5,000's worth of damage to both vehicles. The owner of the other car reported the accident to the Neckarsulm police.
On arriving at the scene of the accident, the police, by means of a notice written in Turkish, informed the applicant, amongst other things, of his rights to refuse to make any statement and to consult a lawyer. He availed himself of these rights, and a report (Verkehrs-Ordnungswidrigkeiten-Anzeige) was thereupon transmitted by the police to the Heilbronn administrative authorities (Landratsamt).
11. By decision of 6 April 1978, the Heilbronn administrative authorities imposed on Mr. Öztürk a fine (Bussgeld) of DM 60 for causing a traffic accident by colliding with another vehicle as a result of careless driving ("Ausserachtlassen der erforderlichen Sorgfalt im Strassenverkehr"); in addition he was required to pay DM 13 in respect of fees (Gebühr) and costs (Auslagen).
The decision was based on section 17 of the Regulatory Offences Act of 24 May 1968, in its consolidated version of 1 January 1975 (Gesetz über Ordnungswidrigkeiten - "the 1968/1975 Act"; see paragraph 18 below), on section 24 of the Road Traffic Act (Strassenverkehrsgesetz) and on Regulations 1 § 2 and 49 § 1, no. 1, of the Road Traffic Regulations (Strassenverkehrs-Ordnung). Regulation 1 § 2 reads as follows:
"Every road-user (Verkehrsteilnehmer) must conduct himself in such a way as to ensure that other persons are not harmed or endangered and are not hindered or inconvenienced more than is unavoidable in the circumstances."
Regulation 49 § 1, no. 1, specifies that anyone who contravenes Regulation 1 § 2 is guilty of a "regulatory offence" (Ordnungswidrigkeit). Under section 24 sub-section 2 of the Road Traffic Act, such an offence gives rise to liability to a fine.
12. On 11 April 1978, the applicant, who was represented by Mr. Wingerter, lodged an objection (Einspruch) against the above-mentioned decision (section 67 of the 1968/1975 Act); he stated that he was not waiving his right to a public hearing before a court (section 72).
The public prosecutor's office (Staatsanwaltschaft) attached to the Heilbronn Regional Court (Landgericht), to which the file had been transmitted on 5 May, indicated six days later that it had no objection to a purely written procedure; it further stated that it would not be attending the hearings (sections 69 and 75).
13. Sitting in public on 3 August 1978, the Heilbronn District Court (Amtsgericht) heard Mr. Öztürk, who was assisted by an interpreter, and then three witnesses. Immediately thereafter, the applicant withdrew his objection. The Heilbronn administrative authorities' decision of 6 April 1978 accordingly became final (rechtskräftig).
14. The District Court directed that the applicant should bear the court costs and his own expenses. On 12 September 1978, the District Court Cashier's Office (Gerichtskasse) fixed the costs to be paid by Mr. Öztürk at DM 184.70, of which DM 63.90 represented interpreter's fees.
15. On 4 October, the applicant entered an appeal (Erinnerung) against the bill of costs with regard to the interpreter's fees. He relied on Article 6 (art. 6) of the Convention and referred to the Commission's report of 18 May 1977 in the case of Luedicke, Belkacem and Koç. At the time, that case was pending before the Court, which delivered its judgment on the merits on 28 November 1978 (Series A no. 29).
The District Court dismissed the appeal on 25 October. It noted that the obligation to bear the interpreter's fees was grounded on Article 464 (a) of the Code of Criminal Procedure (Strafprozessordnung) and section 46 of the 1968/1975 Act (see paragraphs 21 and 35 below). Relying on a 1975 decision by the Cologne Court of Appeal, it held that this obligation was compatible with Article 6 § 3 (e) (art. 6-3-e) of the Convention. According to the District Court, the above-mentioned opinion of the Commission did not alter matters since, unlike a judgment of the Court; it was not binding on the States.
16. According to undisputed evidence adduced by the Government, the court costs, including the interpreter's fees, were paid by an insurance company with which Mr. Öztürk had taken out a policy.
17. The purpose of the 1968/1975 Act was to remove petty offences from the sphere of the criminal law. Included in this category were contraventions of the Road Traffic Act. Under section 21 of the Road Traffic Act (in its former version), commission of such contraventions had given rise to liability to a fine (Geldstrafe) or imprisonment (Haft). Section 3 no. 6 of the Act of 24 May 1968 (Einführungsgesetz zum Gesetz über Ordnungswidrigkeiten) classified them as "Ordnungswidrigkeiten" and henceforth made them punishable only by fines not considered to be criminal by the legislature (Geldbussen).
The 1968/1975 Act had been foreshadowed in the Federal Republic by two enactments: the Act of 25 March 1952 on "regulatory offences" (Gesetz über Ordnungswidrigkeiten) and, to a certain extent, the Economic Crime Act of 26 July 1949 (Wirtschaftsstrafgesetz).
18. Section 1 sub-section 1 of the 1968/1975 Act defines a "regulatory offence" (Ordnungswidrigkeit) as an unlawful (rechtswidrig) and reprehensible (vorwerfbar) act, contravening a legal provision which makes the offender liable to a fine (Geldbusse). The fine cannot be less than DM 5 or, as a general rule, more than DM 1,000 (section 17 sub-section 1). The amount of the fine is fixed in each case by reference to the seriousness of the offence, the degree of misconduct attributable to the offender and, save for minor (geringfügig) offences, the offender's financial circumstances (section 17 sub-section 3).
If the act constitutes both a "regulatory" and a criminal offence, only the criminal law is applicable; however, if no criminal penalty is imposed, the act may be punished as a "regulatory offence" (section 21).
19. Ordnungswidrigkeiten are to be dealt with by the administrative authorities (Verwaltungsbehörde) designated by law, save in so far as the 1968/1975 Act confers the power of prosecution of such offences on the public prosecutor and their judgment and sentencing on the courts (sections 35 and 36). Where an act has come before him as a criminal matter, the public prosecutor may also treat the act as a "regulatory offence" (section 40).
20. The administrative authorities will remit the matter to the public prosecutor if there is reason to suppose that a criminal offence has been committed; he will refer the matter back to them if he does not take proceedings (section 41). In the case of a "regulatory offence" having a close connection with a criminal offence in respect of which the public prosecutor has instituted proceedings, the prosecutor may extend the criminal proceedings to cover the "regulatory offence" as long as the administrative authorities have not fixed any fine (section 42).
The public prosecutor's decision to treat or not to treat an act as a criminal offence is binding on the administrative authorities (section 44).
21. Subject to the exceptions laid down in the 1968/1975 Act, the provisions of the ordinary law governing criminal procedure, and in particular the Code of Criminal Procedure, the Judicature Act (Gerichtsverfassungsgesetz) and the Juvenile Courts Act (Jugendgerichtsgesetz), are applicable by analogy (sinngemäss) to the procedure in respect of "regulatory offences" (section 46 sub-section 1). The prosecuting authorities (see paragraph 19 above) have the same rights and duties as the public prosecutor in a criminal matter unless the 1968/1975 Act itself states otherwise (section 46 sub-section 2). Nevertheless, various measures permissible in criminal matters may not be ordered in respect of "regulatory offences", notably arrest, interim police custody (vorläufige Festnahme) or seizure of mail or telegrams (section 46 sub-section 3). The taking of blood samples and other minor measures, within the meaning of Article 81 (a) § 1 of the Code of Criminal Procedure, remain possible.
22. The prosecution of "regulatory offences" lies within the discretion (pflichtgemässes Ermessen) of the competent authority; so long as the case is pending before it, the competent authority may terminate the prosecution at any time (section 47 sub-section 1).
Once the case has been brought before a court (see paragraphs 27-28 below), power to decide on a stay of proceedings rests with the court; any such decision requires the agreement of the public prosecutor and is final (section 47 sub-section 2).
23. As regards the judicial stage (if any) of the proceedings (see paragraphs 28-30 below), section 46 sub-section 7 of the 1968/1975 Act attributes jurisdiction in the matter to divisions (Abteilungen) of the District Courts and to chambers (Kammern; Senate) of the Courts of Appeal (Oberlandesgerichte) and of the Federal Court of Justice (Bundesgerichtshof).
24. Investigations (Erforschung) into "regulatory offences" are a matter for the police authorities. In this connection, the police authorities enjoy discretionary powers (pflichtgemässes Ermessen); save in so far as the 1968/1975 Act provides otherwise, they have the same rights and duties as in the prosecution of criminal offences (section 53 sub-section 1).
25. Prior to any decision being taken, the person concerned (Betroffener) has to be given the opportunity of commenting, before the competent authorities, on the allegation made against him (section 55).
In the case of a minor (geringfügig) offence, the administrative authorities may give the person concerned a warning (Verwarnung) and impose on him an admonitory fine (Verwarnungsgeld) which, save for any exception laid down under the applicable law, may range from DM 2 to 20 (section 56 sub-section 1). However, sanctions of this kind are possible only if the person concerned consents and pays the fine immediately or within one week (section 56 sub-section 2).
26. If necessary, the administrative authorities will designate an officially appointed lawyer to act for the person concerned in the proceedings before them (section 60).
Measures taken by the administrative authorities during the preliminary procedure can in principle be challenged before the courts (section 62).
27. Save in so far as the 1968/1975 Act provides otherwise - as in the case of the matter being settled by payment of an admonitory fine -, a "regulatory offence" is punishable by an administrative decision imposing a fine (Bussgeldbescheid; section 65).
The person concerned may lodge an objection (Einspruch) within one week (section 67). Unless they withdraw their decision, the administrative authorities will then forward the file to the public prosecutor who will submit it to the competent District Court (sections 69 sub-section 1 and 68) and thereupon assume the function of prosecuting authority (section 69 sub-section 2).
28. Under section 71, if the District Court finds the objection admissible (section 70) it will, unless the 1968/1975 Act states otherwise, examine the objection in accordance with the provisions applicable to an "Einspruch" against a penal order (Strafbefehl): in principle, it will hold a hearing and deliver a judgment (Urteil) which may impose a heavier sentence (Article 411 of the Code of Criminal Procedure).
However, its ruling may take the form of an order (Beschluss) if the District Court considers that a hearing is not necessary and provided the public prosecutor or the person concerned does not object (section 72 sub-section 1). In that event, it may, inter alia, acquit the person concerned, settle the amount of a fine or terminate the prosecution, but not increase the penalty (section 72 sub-section 2).
29. The person concerned has the option of attending hearings but is not bound to do so unless the District Court so directs (section 73 sub-sections 1 and 2); he may be represented by a lawyer (section 73 sub-section 4).
The public prosecutor's office may attend the hearing; if the District Court considers the presence of an official from that office to be appropriate, it will inform the latter accordingly (section 75 sub-section 1).
The District Court will give the administrative authorities the opportunity to set out the matters which, in their view, are of importance for the decision to be given; they may address the Court at the hearing, if they so wish (section 76 sub-section 1).
30. Subject to certain exceptions, section 79 allows an appeal on points of law (Rechtsbeschwerde) to be brought against a judgment or an order issued pursuant to section 72; save in so far as the 1968/1975 Act states otherwise, in determining the appeal the court concerned will follow, by analogy, the provisions of the Code of Criminal Procedure relating to cassation proceedings (Revision).
31. The administrative authorities' classification of an act as a "regulatory offence" is not binding on the court ruling on the objection (Einspruch); however, it can apply the criminal law only if the person concerned has been informed of the change of classification and enabled to prepare his defence (section 81 sub-section 1). Once this condition has been satisfied, either by the court of its own motion or at the public prosecutor's request, the person concerned acquires the formal status of an accused (Angeklagter, section 81 sub-section 2) and the subsequent proceedings fall outside the scope of the 1968/1975 Act (section 81 sub-section 3).
32. A decision imposing a fine is enforceable once it has become final (sections 89 and 84). Unless the 1968/1975 Act states otherwise, enforcement of a decision taken by the administrative authorities is governed by the Federal Act or the Land Act, as the case may be, on enforcement in administrative matters (Verwaltungs-Vollstreckungsgesetze) (section 90 sub-section 1). When the decision is one taken by a court, certain relevant provisions of, inter alia, the Code of Criminal Procedure are applicable (section 91).
33. If, without having established (dargetan) his inability to pay, the person concerned has not paid the fine in due time, the court may, at the request of the administrative authorities or, where the fine was imposed by a court decision, of its own motion order coercive imprisonment (Erzwingungshaft - section 96 sub-section 1). The resultant detention does not replace payment of the fine in the manner of an Ersatzfreiheitsstrafe under the criminal law, but is intended to compel payment. The period of detention may not exceed six weeks for one fine and three months for several fines (section 96 sub-section 3). Implementation of the detention order is governed, inter alia, by the Code of Criminal Procedure (section 97).
34. As far as the costs of the administrative procedure are concerned, the competent authorities apply by analogy certain provisions of the Code of Criminal Procedure (section 105).
35. Under section 109, the person concerned has to bear the costs of the court proceedings if he withdraws his "Einspruch" or if the competent court rejects it.
The costs in question are made up of the expenses and fees of the Treasury (Article 464 (a) § 1, first sentence, of the Code of Criminal Procedure). These fees and expenses are listed in the Court Costs Act (Gerichtskostengesetz) which in turn refers, inter alia, to the Witnesses and Experts (Expenses) Act (Gesetz über die Entschädigung von Zeugen und Sachverständigen). Section 17 sub-section 2 of the last-mentioned Act provides that "for the purposes of compensation, interpreters shall be treated as experts".
Interpretation costs (Dolmetscherkosten) are thus included in the costs of judicial proceedings. However, as far as criminal proceedings - and criminal proceedings alone - are concerned, the German legislature amended the schedule (Kostenverzeichnis) to the Court Costs Act following the Luedicke, Belkacem and Koç judgment of 28 November 1978 (see paragraph 15 above; see also Resolution DH (83) 4 of 23 March 1983 of the Committee of Ministers of the Council of Europe). According to no. 1904 in this schedule, henceforth no charge is to be made for "the sums due to interpreters and translators engaged in criminal proceedings in order to translate, for an accused who is deaf or dumb or not conversant with the German language, the statements or documents which the accused needs to understand for his defence" (Act of 18 August 1980).
36. Under the terms of section 109 of the 1968/1975 Act, the question of payment of the costs of the proceedings, including the interpretation costs, only arises once the withdrawal or dismissal of the objection has become final. The person concerned may never be required to make an advance payment in respect of the costs concerned.
37. The Road Traffic Act, the Road Traffic Regulations and the Road Traffic Licence and Vehicle Conformity Regulations (Strassenverkehrs-Zulassungs-Ordnung) contain lists of "regulatory offences" punishable by fine (section 24 of the Road Traffic Act).
In the case of a "regulatory offence" committed in gross (grob) and persistent (beharrlich) violation of the duties incumbent on a driver, the administrative authorities or, where an objection has been lodged, the court may at the same time disqualify the person concerned from holding a driving licence (Fahrverbot) for a period of one to three months (section 25 of the Road Traffic Act). According to the Government, in 1982 such a measure was taken in 0.5 per cent of cases.
38. The Länder have co-operated together to adopt rules (Verwaltungsvorschriften) establishing a uniform scale of fines (Bussgeldkatalog) for the various road traffic "regulatory offences"; legally, these rules are binding on the administrative authorities empowered to impose fines but not on the courts.
Section 26 (a) of the Road Traffic Act, which was inserted in the Act of 28 December 1982 but which has not yet been implemented, provides that the Minister of Transport shall issue such rules with the agreement of the Bundesrat and in the form of a Decree (Rechtsverordnung).
39. Under section 28 of the Road Traffic Act, a fine imposed for contravention of the road traffic regulations may in some specified cases be entered on a central traffic register (Verkehrszentralregister) if it exceeds a certain level (DM 39 at the time of the facts in issue, DM 79 as from 1 July 1982); on the other hand, no mention of it is included in the judicial criminal records (Bundeszentralregister). The entry must be deleted after a maximum of two years, unless further entries have been made in the meantime (section 29).
Only certain authorities have access to this register, notably for the purposes of a criminal prosecution or a prosecution for a road traffic "regulatory offence" (section 30).
40. According to undisputed evidence supplied by the Government, the 1968/1975 Act in practice plays a particularly important role in the area of road traffic; thus, it was said that 90 per cent of the fines imposed in 1982 concerned road traffic offences.
The Government stated that each year in the Federal Republic of Germany there were 4,700,000 to 5,200,000 decisions imposing a fine (Geldbusse) and 15,500,000 to 16,000,000 warnings accompanied by a fine (Verwarnungsgelder). The statistics of the Länder on Road Traffic Act offences were said to show that in 1982 fines exceeding DM 200 and DM 500 came to 1.5 per cent and 0.1 per cent respectively of the total, as compared with 10.8 per cent for fines of between DM 101 and DM 200, 39.4 per cent for fines of between DM 41 and DM 100 and 48.2 per cent for fines of DM 40 or less.
43.4 per cent of road traffic offences consisted of contraventions of a prohibition on stopping or parking, approximately 17.1 per cent of speeding, 6.5 per cent of non-observance of traffic lights and 5.9 per cent of illegal overtaking. Other offences totalled less than 4 per cent by category. The offences covered by Regulation 1 § 2 of the Road Traffic Regulations, the provision applied in Mr. Öztürk's case (see paragraph 11 above), amounted to approximately 2.8 per cent.
41. Despite the absence of statistics in this connection, the Government estimated that 10 to 13 per cent of the five million or so fines imposed each year concerned foreigners. Of the 4,670,000 foreigners living in the Federal Republic, approximately 2,000,000 possessed a motor vehicle.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-3
VIOLATED_BULLETPOINTS: 6-3-e


ITEMID: 001-104511
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF CELIK (BOZKURT) v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
TEXT: 5. The applicant was born in 1977 and lives in Istanbul.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 15 June 2000 the applicant was charged with the offence of membership of Hizbullah, a proscribed organisation in Turkey.
8. While the criminal proceedings against the applicant were continuing before the Diyarbakır State Security Court, Law no. 4616 entered into force on 22 December 2000. Law no. 4616 provides for the suspension of criminal proceedings in respect of certain offences committed before 23 April 1999, without reaching a definitive finding as to guilt.
9. On 13 March 2001 the Diyarbakır State Security Court considered that there was no evidence to show that the applicant had been a member of the illegal organisation or that she had carried out “any activities on behalf of the illegal organisation in an active and continuous manner”. According to the Diyarbakır State Security Court, the applicant's activities “had remained within the scope of the offence of aiding and abetting the illegal organisation”, which was one of the offences in respect of which Law No. 4616 was applicable. The Diyarbakır State Security Court thus suspended the criminal proceedings against the applicant.
10. In the meantime, on 4 October 2000, that is before the criminal proceedings were suspended, the applicant was dismissed from her post as a primary school teacher because the Ministry of Education considered that the evidence in the possession of the prosecuting authorities showed that she was a member of the illegal organisation.
11. The applicant challenged her dismissal by bringing a case against the Ministry of Education before the Diyarbakır Administrative Court on 3 November 2000.
12. On 7 March 2002 the Diyarbakır Administrative Court rejected the applicant's request for the Ministry's decision dismissing her from her post to be quashed. In its decision the Diyarbakır Administrative Court referred to the Diyarbakır State Security Court's above-mentioned decision of 13 March 2001, and held that the dismissal of the applicant “whose criminal activities were deemed in the criminal proceedings to constitute the offence of aiding and abetting” had been lawful.
13. The appeal lodged by the applicant against the Administrative Court decision was dismissed by the Supreme Administrative Court on 12 November 2004. The Supreme Court decision was notified to the applicant on 16 March 2005.
14. On various subsequent dates the applicant made job applications to the education authorities. One of the applications she made, on 13 February 2008, was rejected by the local education authority in Istanbul on the basis of the Diyarbakır State Security Court decision of 13 March 2001.
15. According to an official document dated 22 February 2008, the applicant has no criminal record.
16. Law No. 4616, in so far as relevant, provides as follows:
“4. In respect of offences committed before 23 April 1999 which are punishable by a maximum prison sentence of ten years:
- where no criminal investigation has been commenced or no indictment has been filed, institution of prosecution shall be suspended;
- where the criminal prosecution has reached the final stages but no definitive finding on the merits has been adopted or where a definitive finding on the merits has not yet become final, adoption of a definitive finding on the merits shall be suspended.
If the person concerned is detained on remand, he or she shall be released. Documents and evidence concerning such offences shall be kept until the statute of limitations has been reached.
In cases where an offence of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached, a new prosecution shall be brought in respect of the previous offence which was the subject matter of the suspension or the suspended proceedings shall be resumed. If no offences of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached, no public prosecutions may be brought against those who benefited from the suspension and the suspended proceedings shall be permanently terminated.
...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-100801
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: STEINDEL v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Andreas Steindel, is a German national who was born in 1967 and lives in Achersleben. He was represented before the Court by Mr G. Jurczyk, a lawyer practising in Magdeburg.
The applicant practices as an ophthalmologist. From January 2001 to 31 December 2004 he held a license as a statutory health insurance physician (Zulassung zur vertragsärztlichen Versorgung). Having renounced his licence, he exclusively treats patients in private practice.
On 28 December 2004 the Association of Medical Practitioners (Ärztekammer Sachsen-Anhalt) ordered the applicant to participate in the medical emergency services organised by the Association of Statutory Health Insurance Physicians (Kassenärztliche Vereinigung Sachsen-Anhalt, KVSA). His duty was suspended until determination of the modalities of his remuneration.
On 15 March 2005 the KVSA informed the applicant about the modalities of his remuneration during emergency services. He was further informed that, notwithstanding the fact that he was not a member of the KVSA, his services and remunerations within the framework of the emergency services were subject to the KVSA's supervision.
On 17 March 2003 the applicant informed the KVSA that he refused to serve in the emergency service and would only be willing to serve in an emergency service which was organised by the Association of Medical Practitioners.
On 21 March 2005 the Association of Medical Practitioners informed the applicant that he was statutorily obliged to participate in the emergency service. They pointed out that the emergency service was a common project by the KVSA and the Association of Medical Practitioners and that all pertinent decisions were taken jointly by both associations.
On 22 July 2005 the applicant lodged a motion against the Association of Medical Practitioners. He argued that he was not obliged to participate in the emergency service organised by the KVSA, because he did not practice as a statutory health insurance physician. He further alleged that the order lacked a sufficient legal basis.
On 21 March 2006 the Magdeburg Administrative Court (Verwaltungsgericht) dismissed the applicant's motion as being unfounded. According to that court, the impugned order was compatible with the pertinent law. The emergency service was set up jointly by the Association of Medical Practitioners and by the KVSA in order to avoid overlapping emergency services.
The pertinent provisions did not violate the applicant's rights under the Basic Law. The infringement on the applicant's right to freedom of profession was neither disproportionate nor excessive. Furthermore, there was no violation of the right to equal treatment, as all medical practitioners were equally obliged to provide emergency services to their patients outside consultation hours. This duty constituted an intrinsic part of a medical practitioner's occupation. The organisation of emergency services released the medical practitioner from the obligation to be available for his patients “around the clock”, at nights and during the weekends. Having regard to the fact that all medical practitioners – and not only those who held a license as statutory health insurance physicians – profited from this service, it was justified to order all practitioners to participate in the emergency service.
The fact that the emergency service was organised by the KVSA did not turn the applicant into a member of that organisation; he merely profited from its organisational structures.
On 6 September 2006 the Saxony-Anhalt Administrative Court of Appeal (Oberverwaltungsgericht) refused to allow the applicant leave to appeal. Further to the administrative court's considerations, the Court of Appeal found that the duties imposed on the applicant were not excessive, as it was merely envisaged to oblige the applicant to serve on six days during a three-months-interval. The Court of Appeal further considered that it was justified to oblige all medical practitioners, irrespective of the fact if they were willing to assure “around the clock” availability to their own patients. The system could only function if, as a matter of principle, all physicians concerned took part in it.
On 11 January 2007 the Federal Constitutional Court refused to admit the applicant's constitutional complaint as there was no indication of a violation of the applicant's basic rights (application no. 1 BvR 2572/06).
According to section 20 § 2 of the Law on the Associations of Medical Practitioners for Saxony-Anhalt (Gesetz über die Kammern für Heilberufe) the Medical Association is entitled to issue regulations on medical emergency service.
Section 26 of the Medical Association's professional Code of Conduct (Berufsordnung der Ärztekammer Sachsen-Anhalt) provides that every resident medical practitioner is obliged to participate in emergency service. Regulations on the organisation of the emergency service have been jointly issued by the Medical Association, representing all medical practitioners, and by the KVSA, representing only those physicians practicing under the public health insurance scheme.
Non-compliance with the obligations under the Medical Association's professional Code of Conduct can lead to disciplinary proceedings. The disciplinary court has the capacity to issue formal reprimands, impose fines and to advice the authorities to revoke a physician's license (sections 46 and 48 of the Law on the Associations of Medical Practitioners).


ITEMID: 001-93258
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BEGANOVIĆ v. CROATIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 3;No violation of Art. 14+3;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1977 and lives in Luka.
5. On 9 December 1999 a request that minor-offences proceedings be instituted against the applicant was lodged with the Zaprešić Minor Offences Court (Prekršajni sud u Zaprešiću), following an allegation that on 8 December 1999 the applicant (then aged twenty-two) and two other individuals had physically attacked three minors, D.E., S.C. and I.Š., by hitting them and kicking them all over their bodies while simultaneously shouting obscenities. They had also damaged a vehicle owned by the mother of one of the victims and had broken one of its front lights and the front bumper.
6. On the evening of 23 April 2000 the above-mentioned D.E. (born on 17 February 1982), S.C. (born on 15 November 1982) and I.Š. (born on 25 July 1982), together with four friends, B.B. (born on 17 January 1983), F.P. (born on 28 May 1982), Z.T. (born on 18 December 1981) and S.T. (born on 25 May 1983), approached the applicant, who was in the company of five friends, and asked him about the incident of 8 December 1999. The applicant then verbally insulted D.E. on the basis of his Serbian origin. A fight ensued.
7. On 24 April and 8 June 2000 the police interviewed the individuals from the above group. Their statements concurred as to the fact that they had been friends with the applicant until the incident of 8 December 1999. On 23 April 2000 they had agreed that they would find the applicant and attack him. When they attacked the applicant, he had pulled out a knife and stabbed Z.T. twice. B.B. had then hit the applicant on the head with a wooden plank and all of them, including the applicant, had left the scene.
8. In his statement of 24 April 2000 I.Š. mentioned that the applicant was of Roma origin, but did not elaborate on this point. The relevant part of the statement reads:
“As regards Darko Beganović, he is of Roma origin. He used to mistreat the others on occasions when any of them was alone. He threatened to attack them, which caused fear in the group because they were afraid of him and of such behaviour.”
9. The police also interviewed the applicant and two other neutral witnesses. In his statement the applicant gave no indication that any of the assailants had made reference to his Roma origin.
10. On 12 June 2000 the applicant, represented by legal counsel, lodged a criminal complaint with the Zagreb State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) against six identified individuals (F.P., Z.T., S.T., S.C., D.E. and B.B.) and a seventh unknown individual, alleging that on 23 April 2000 they had approached and surrounded him and proceeded to hit him until he fell to the ground. They had then started to kick him. When the beating stopped he had stood up, whereupon B.B. had hit him on the head with a wooden plank, causing him to lose consciousness. The attack had caused him severe bodily injuries. Furthermore, on 6 June 2000 the same men had told a certain D.K. to tell the applicant that they were going to burn him alive. The applicant alleged that they had thus committed two criminal offences, namely assault leading to grievous bodily harm and threatening behaviour, and asked for criminal proceedings to be brought against them.
11. In a letter to the Zagreb Police Department dated 24 April 2000 the “Sveti Duh” General Hospital in Zagreb, where the applicant had been examined, described the applicant’s injuries as grievous. A letter of discharge dated 29 April 2000 stated that the applicant had been admitted to the hospital on 24 April 2000 and had been diagnosed with concussion and numerous contusions to the head and body.
12. On 4 July 2000 the Zagreb Police Department lodged a criminal complaint with the Zagreb State Attorney’s Juvenile Office against B.B., alleging that at around 11 p.m. on 23 April 2000 he and his friends, S.T., D.E., I.Š., Z.T. and S.C., had had a fight with the applicant. The complaint alleged that they had planned the fight beforehand and for that purpose had gone to a location where they expected to find the applicant. After verbally assaulting him, they had beaten him up and kicked him all over his body. One of them, B.B., had hit him on the head with a wooden plank and the applicant had lost consciousness. The complaint also cited the above medical records stating that the applicant had sustained grievous bodily injuries.
13. In submissions of 8 January 2001 the applicant’s counsel pointed out that she had lodged a criminal complaint on 12 June 2000 and asked to be informed of the case-file number. She further contended that Articles 2 and 3 of the Convention and Article 6 § 2 of the Framework Convention for the Protection of National Minorities required State authorities to take all steps to identify within a reasonable time the perpetrators of criminal offences against life and limb, and to do so with particular urgency where, as in the case at issue, the victim was a member of a national minority (Roma). She added that all the circumstances indicated that the offence was racially motivated.
14. On 12 March 2001 the Zagreb State Attorney’s Office forwarded the applicant’s criminal complaint to the Velika Gorica State Attorney’s Office. A medical report was prepared by a court expert in forensic medicine. As regards the injuries sustained by the applicant, the relevant part of the report reads:
“Examination and treatment of the victim, Beganović Darko, established numerous blows which caused contusions and lacerations to his head and body each of which amounts to a bodily injury (under the previous classification, a lesser bodily injury). The injuries were caused by several blows from one or more hard objects, possibly a fist, a shoe-clad foot or a similar object. If some of the blows were struck by a shoe-clad foot, the victim was most probably bent over or lying on the ground. Since the injuries are not described in detail, it is not possible to establish their number or the number of blows. The blows were of minor to medium intensity.
The diagnosis of concussion, although mentioned, was not objectively established in the medical documentation enclosed in the file, and could therefore not be forensically accepted.
Taken together, all of the injuries sustained by the victim Beganović Darko amount to a bodily injury.”
As regards the injuries sustained by Z.T., the relevant part of the report reads:
“Examination of Z.T. revealed two stab wounds on his back. Since these wounds are not described in detail, only an indirect conclusion can be reached, namely that, given the lack of injuries in deeper structures, the wounds were shallow and each of them, taken separately and together, amounted to bodily injury. The injuries were caused by two separate knife stabs or stab blows by a similar object. The stabs were of minor intensity. At the moment of stabbing the victim most probably had his back turned towards the assailant.”
15. On 16 July 2001 the Velika Gorica State Attorney’s Office decided not to institute criminal proceedings against B.B. on the ground that the medical analysis of the injuries sustained by the applicant indicated that the diagnosis of concussion could not be accepted forensically, given that all the other injuries were of a lesser nature. Under the relevant domestic law a prosecution for such injuries had to be brought privately by the victim, while a prosecution for grievous bodily injuries had to be initiated by the relevant State authorities. The applicant was thus instructed to proceed accordingly and to ask, within eight days, that a juvenile panel from a competent county court institute criminal proceedings against B.B.
16. In her submissions of 24 August 2001 to the Velika Gorica State Attorney’s Office, the applicant’s counsel asked for the criminal complaint of 12 June 2000 against the other suspects to be treated as a private prosecution for the offence under Article 98 of the Criminal Code of assault occasioning bodily harm.
17. On 27 August 2001 the applicant’s counsel brought a private prosecution against B.B., then a minor, in the Juvenile Council of the Velika Gorica Municipal Court for the offence under Article 98 of the Criminal Code. On 10 October 2001 the Velika Gorica Municipal Court ordered the applicant’s counsel to inform it of the date of birth of B.B. and to proceed in accordance with sections 45, 46 and 63 of the Juvenile Courts Act.
18. In her submissions to the Velika Gorica State Attorney’s Office of 16 October 2001, the applicant’s counsel argued that the decision of 16 July 2001 not to prosecute concerned only the criminal complaint lodged by the police on 4 July 2000, but not the criminal complaint lodged by the applicant on 12 June 2000, since the latter was broader in scope than the police complaint. She further emphasised that the offence against the applicant was racially motivated and asked the Office to act with reasonable expedition. She also argued that the failure to act by the State Attorney’s Office had infringed the applicant’s constitutional rights to equality and to life, and his rights not to be ill-treated, to have a competent court decide his rights and obligations, to respect for his private and family life and honour, and to protection from violence and hatred based on his nationality, race or religion. She also relied on the Constitutional Act on the Rights and Freedoms of National and Ethnic Minorities in Croatia, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of all Forms of Discrimination and the European Convention on Human Rights.
19. In her submission to the Velika Gorica Municipal Court of the same day the applicant’s counsel stated that she was not in a position to find out B.B.’s date of birth and that such information had to be requested from the Ministry of the Interior. She also submitted that the order to proceed in accordance with sections 45, 46 and 63 of the Juvenile Courts Act had been unclear. She further argued that the applicant had been prevented from prosecuting his assailants and that it was the practice of the State Attorney’s Office not to prosecute acts of violence against citizens of Roma origin. She repeated the contentions she had made to the Velika Gorica State Attorney concerning the infringement of the applicant’s rights.
20. In a letter of 5 November 2001, the Velika Gorica Municipal Court invited the applicant’s counsel to explain whether the private prosecution of B.B. was to be considered as an application to the juvenile panel of a competent county court under section 62 § 2 of the Juvenile Courts Act. In her reply of 7 November 2001, the applicant’s counsel confirmed that this was the case. She further explained that on 16 July 2001 the Velika Gorica State Attorney’s Office had given her an erroneous instruction to bring a private prosecution against B.B. since, under the Juvenile Courts Act, the prosecution of a minor could not be brought privately, but only by a competent State Attorney’s Office. She further pointed out that she had consulted the case file and that no expert assessment had been conducted of the injuries sustained by the applicant, contrary to the statement by the Velika Gorica State Attorney’s Office in its decision not to prosecute of 16 July 2001. She also argued that the offence in question had infringed the applicant’s right to life and personal safety, and the prohibition of torture, inhuman and degrading treatment, and that he had had no effective remedy for the protection of those rights.
21. In a letter of 30 December 2001 addressed to the Velika Gorica State Attorney’s Office, the Zagreb State Attorney’s Office expressed its view that the former body’s decision not to prosecute B.B. had been erroneous and contrary to section 45 of the Juvenile Courts Act, which required the competent State Attorney’s Office to undertake an official prosecution against minors even in respect of criminal offences otherwise subject to private prosecution. The Zagreb State Attorney’s Office indicated that it was necessary to obtain information about B.B. from a competent Social Welfare Centre and then to declare the criminal complaint against B.B. inadmissible, in accordance with section 64 of the Juvenile Courts Act, subject to the condition that B.B. be ordered to undertake one of the measures listed in that provision.
22. On 4 February 2002 the Zagreb County Court Juvenile Council decided to bring charges of bodily injury under Article 99 of the Criminal Code against B.B. before a juvenile judge. The case file was forwarded to the Velika Gorica Municipal Court in order for it to conduct the proceedings.
23. On 5 July 2002 the Velika Gorica State Attorney’s Office lodged a request with the juvenile judge of the Velika Gorica Municipal Court for preparatory proceedings to be instituted against B.B. They asked that B.B. and other participants be interviewed regarding the circumstances of the offence in question. They further requested a fresh report from the Zaprešić Welfare Centre, in order to decide whether there was a need for an educative measure in respect of B.B.
24. The hearing before the Velika Gorica Municipal Court, scheduled for 2 November 2002, was adjourned because counsel for the defendant failed to appear. At the hearing held on 13 January 2003 the applicant gave his evidence. He did not indicate in any way that any of the assailants had made reference to his Roma origin. He stated that on 23 April 2000 he had been in the company of five of his friends when the assailants approached him and then attacked him. None of his friends had been involved in the incident.
25. On 10 April 2003 the Velika Gorica Social Welfare Centre submitted their report on B.B., drawn up on 3 April 2003. The relevant part of the report reads:
“... He completed vocational school ... acquiring a qualification as a machine technician. He was temporarily employed ... until he was conscripted to military service in November 2001.
He completed his military service in May 2002. Since then he has been unemployed but is registered with the State Employment Office.
... there is no evidence that he has committed any further criminal offences.
His cooperation and communication are adequate. He is polite and comes across as a serious young man.
...
In view of his personality, the conditions of his upbringing and his current life, we consider that the criminal offence he has been charged with was a misdemeanour attributable to his youth and the consequence of a stressful situation.
In view of the fact that this was the first time he had ever been reported as a criminal offender and that, in the meantime, he has committed no further criminal offences, we consider it justifiable to impose an educative measure in the form of a special obligation requiring him to participate in the activities of humanitarian organisations or activities of ecological or communal interest.”
26. A qualified social worker conducted a further interview with B.B. on 10 April 2003 for the purposes of the criminal proceedings against him. The relevant part of the report on the interview reads:
“ ... To date there has been no need for social services intervention in the family, including in respect of B., who has no record of crime or misdemeanours.
He takes seriously the fact that he has been the subject of proceedings before a court of law, as does his mother, and he expresses concern about the outcome.
The above observations lead to the conclusion that B.’s general functioning is adequate, being marked by pronounced social and emotional maturity and clear and mature opinions. He shows a responsible attitude towards his obligations.
Therefore, should his criminal responsibility be established, the offence could be construed as a misdemeanour arising out of a specific situation, and the imposition of an educative measure in the form of a special obligation to participate in humanitarian activities seems justified.”
27. At the hearing held on 21 May 2003 Z.T., S.T., S.C., I.Š. and F.P. gave evidence as witnesses. None of them made any reference to the applicant’s Roma origin. They all stated that they had socialised with the applicant and belonged to the same circle of friends prior to the incident of 8 December 1999. In a decision of 26 May 2003 the Velika Gorica Municipal Court instituted preparatory proceedings against B.B., under section 68(2) of the Juvenile Courts Act. A hearing scheduled for 5 November 2003 was adjourned on the ground that D.E., who was studying in Germany and had been called as a witness, did not appear. He gave his evidence at the hearing held on 12 February 2004. On 12 January 2004 the applicant’s counsel submitted an application to expedite the proceedings.
28. On 26 February 2004 the Velika Gorica State Attorney’s Office made a proposal that B.B., under sections 6 and 9 of the Juvenile Courts Act, take part in the work of humanitarian organisations or activities of communal or ecological interest instead of having criminal sanctions imposed on him. The proposal was based on the family and personal circumstances of B.B., who had meanwhile become an adult, had successfully completed his schooling and military service and was looking for a job. There had been no further criminal complaints against him.
29. On 22 March and 6 May 2004 the applicant’s counsel submitted further applications to expedite the proceedings. On 2 July 2004 the Velika Gorica Municipal Court joined the two sets of proceedings. On 17 January 2005 the applicant’s counsel submitted a further application to expedite the proceedings. On 17 June 2005 the applicant’s counsel submitted a fresh application to expedite the proceedings to the President of the Velika Gorica Municipal Court, stressing that the prosecution was about to become time-barred.
30. On 21 December 2005 the Velika Gorica Municipal Court discontinued the proceedings against B.B. on the ground that the prosecution for the offence with which he was charged had become time-barred on 23 April 2004. A subsequent appeal by the applicant was dismissed on 9 March 2006 by the Velika Gorica County Court.
31. On 30 September 2002 the Velika Gorica State Attorney’s Office declared the applicant’s criminal complaint of 12 June 2000 inadmissible in respect of F.P., Z.T., S.C. and D.E. as, under the relevant domestic law, a prosecution for bodily harm had to be brought privately by the victim. As to the alleged threat, D.K., in a statement to the State Attorney’s Office, denied telling the applicant that any such threat had been made. The applicant was informed of his right to take over the prosecution as a subsidiary prosecutor and to lodge a private subsidiary indictment with the Velika Gorica Municipal Court or to request an investigation through the Zagreb County Court.
32. On 11 November 2002 the applicant, represented by counsel, lodged a private subsidiary indictment against five suspects (all of the assailants but B.B. and the one unidentified assailant) with the Velika Gorica Municipal Court for the offences set out in Articles 98 and 99 of the Criminal Code, namely causing bodily harm and causing grievous bodily harm. He also asked for these proceedings to be joined with those already pending before the same court against B.B.
33. On 29 September 2003 the Municipal Court asked the Zaprešić Social Welfare Centre to prepare reports on the defendants.
34. The relevant part of the report on S.T., drawn up on 28 October 2003, reads:
“... he dropped out of high school and in October this year enrolled in a training course for security guards ... which he plans to complete by June 2004.
He has less time for leisure because he is attending classes and assisting in renovation work on the family home.
S. greets others and communicates with them politely.
His hygiene habits are appropriate to his age.
He smokes and drinks alcoholic drinks occasionally.
In a decision of the [Velika Gorica Municipal] Court ... of 22 November 2001 an educative measure was imposed on him in the form of close care and supervision and a special obligation to undergo specialised medical treatment or treatment for drug and other addictions.
S. carried out the above special obligation in Zagreb City Centre for the Prevention of Addictions, although there were difficulties in respect of his frequency of ... attendance.
The educative measure consisting of close care and supervision was implemented, although there were difficulties related to regular communication and performance of the programme tasks.
S. lives with his parents and brother Z.
...
The parents cared for the children’s basic needs according to their abilities. However, they lacked the capacity to face up to the developmental difficulties [of children]. Becoming aware of their helplessness in bringing up their children and their lack of authority, they became discouraged.
The family live in their own house ... where they moved six year ago after living in a flat ...
S. has not adapted well to rural life.
As regards the question of criminal proceedings, we propose that a special obligation be imposed in the form of participation in humanitarian activities.”
35. The relevant part of the report on F.P., drawn up on 17 November 2003, reads:
“ ... In June 1998, as the driver of a vehicle, [he had] a road accident in which he sustained multiple contusions to his head and lungs. He was hospitalised ... He was unconscious for twelve days. ... As a consequence ... he had a mild motor skills and speech disorder and frequent headaches. ... His current health is good.
He completed high school ... and obtained a qualification as a waiter ... he then also completed training as a lorry driver and a driver of vehicles for the transport of dangerous materials.
For a period of time he worked as a waiter and in the past seven months he has worked as a driver.
...
He did not perform military service. He lives with his parents and is not married.
He cooperates well and communicates adequately.
The records of this centre show that in 1998 preliminary proceedings were conducted against the then minor F. in the Zagreb Municipal Court in connection with the criminal offence of causing a road accident. The proceedings were terminated [without a conviction] since the court applied the principle of appropriateness [of criminal punishment].
He has not committed any further criminal offences.
On the basis of the above we consider, should his criminal responsibility be established, that application of the Juvenile Courts Act is justified, and we propose that a special obligation be imposed in the form of participation in the activities of humanitarian organisations or activities of ecological or communal interest.”
36. The relevant part of the report on D.E., drawn up on 17 November 2003, reads:
“We have not been able to contact the above-mentioned young adult directly. Instead, we conducted a telephone conversation with D., who indicated that he is currently resident in Germany with his mother and studying computer science.
...
The records of this Centre show that D. has not committed any further criminal offence nor is there any record of any other asocial behaviour.
On the basis of the above we consider, should his criminal responsibility be established, that application of the Juvenile Courts Act is justified, and we propose that a special obligation be imposed in the form of participation in the activities of humanitarian organisations or activities of ecological or communal interest.”
37. The relevant part of the report on Z.T., drawn up on 26 November 2003, reads:
“... he dropped out of a [vocational] high school he had attended until the third grade.
...
In 2001 he completed his military service, and after returning to his family decided to continue his education and enrolled in evening classes in the same [vocational] school, in order to obtain a qualification in electronics.
Currently he is about to complete his education, and needs only to pass the final exams. Meanwhile, Z. has been working part-time and since last May has been employed in the Croatian Institute for Construction Works ...
He is unmarried and lives with his parents.
According to the records of this Centre he has not committed any further criminal offences.
He cooperates well and communicates adequately. He comes across as a serious young man.
...
On the basis of the above, we consider, should his criminal responsibility be established, that application of the Juvenile Courts Act is justified, and we propose that a special obligation be imposed in the form of participation in the activities of humanitarian organisations or activities of ecological or communal interest.”
38. The relevant part of the report on S.C., drawn up on 2 December 2003, reads:
“... he completed vocational school on schedule and graduated in 1999.
After graduation he was unemployed since he could not find a job, but he helped his parents [on their] agricultural [land].
In 2001 he completed his military service.
Currently, he is employed in a construction firm ...
He states that, owning to his work, he does not have much leisure time, which he then spends resting or helping his parents.
According to the information of this Centre he has not committed any further criminal offences in the meantime.
He cooperates well and comes across as a serious young man.
...
On the basis of the above, we consider, should his criminal responsibility be established, that application of the Juvenile Courts Act is justified, and we propose that a special obligation be imposed in the form of participation in the activities of humanitarian organisations or activities of ecological or communal interest.”
39. The first hearing, scheduled for 9 March 2004, was adjourned since only one of the five defendants appeared. On 22 March and 6 May 2004 the applicant’s counsel submitted further applications to expedite the proceedings.
40. On 2 July 2004 the Velika Gorica Municipal Court joined the two sets of proceedings. At a hearing on 28 October 2005 the presiding judge served a copy of the applicant’s subsidiary private indictment on the defendants and scheduled the next hearing for 8 March 2006. On 21 December 2005 the Velika Gorica Municipal Court severed the proceedings. On 11 May 2006 the Velika Gorica Municipal Court discontinued the proceedings against the remaining defendants, on the ground that the prosecution of the offences with which they were charged had become time-barred on 23 April 2004.
41. On 9 April 2002 the applicant, represented by legal counsel, brought a civil action against nine defendants (the five identified perpetrators of the acts of violence against the applicant and the parents of two of the assailants who had been minors at the time of the attack) in the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking damages for the injuries he had sustained.
42. On 11 September 2003 the applicant’s counsel submitted an application to expedite the proceedings. At a hearing on 17 September 2003 the Zagreb Municipal Court decided to stay the proceedings pending the outcome of the criminal proceedings against the defendants.
43. In submissions of 28 June 2005, the applicant’s counsel complained that the above decision had not been served on her and asked for it to be set aside since the conduct of the criminal proceedings had been ineffective. On 24 February 2006 her submissions were returned to her. When she enquired about the case she was told that on 26 January 2004 it had been transferred to the Zaprešić Municipal Court (Općinski sud u Zaprešiću). However, when on 21 July and 20 December 2006 she made enquiries about the case at the latter court she received no reply.
44. On 29 January 2007 the applicant’s counsel lodged a complaint about the length of the civil proceedings with the Velika Gorica County Court. This complaint was upheld on 23 August 2007; the County Court awarded the applicant 7,771.20 Croatian kuna (HRK) in compensation and ordered the Municipal Court to adopt a decision within six months.
45. At the hearing held on 19 September 2007 the Municipal Court ordered that a medical report be drawn up. On 17 January 2008 the experts submitted their report of 23 December 2007. The relevant part of the report reads:
“The plaintiff received initial medical assistance in the surgical department of the ‘Sveti Duh’ General Hospital in Zagreb on 24 April 2000. He received treatment and was discharged from hospital on 29 April 2000, following an improvement [in his condition]. [He was] advised to rest and take painkillers and to [return for] a neurological check-up in ten days, with the results of an EEG examination.
When examined by the experts the plaintiff complained of continuing headaches.
A clinical examination did not reveal pathological substrates.
The medical documentation consists of a discharge letter, without any further check-ups.
OPINION: The medical documentation and the patient’s condition can be linked to the harmful act in question and the injuries sustained by the plaintiff on that occasion.
Pain of significant intensity lasted two days, of medium intensity three days and of minor intensity one week.
The remaining minor, occasional pains are caused by increased physical effort.
The initial fear was intense and short in duration. Secondary fear (in respect of the injuries and their consequences) of significant intensity lasted a day, of medium intensity three days and of minor intensity a week.
The medical documentation and examination of the victim did not reveal any lasting consequences from the harmful act.
The plaintiff did not require assistance from other persons.”
The civil proceedings before the Zaprešić Municipal Court are still pending.
46. The relevant parts of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997) provide:
“(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) In exceptional circumstances the law may provide for criminal proceedings in respect of certain criminal offences to be instituted on the basis of a private prosecution or for the State Attorney’s Office to institute criminal proceedings following [a private] application.”
“Anyone who inflicts bodily injury on another or impairs another’s health shall be fined or sentenced to imprisonment for a term not exceeding one year.”
“Criminal proceedings for the offence of inflicting bodily injury (Article 98) shall be instituted by means of a private prosecution.”
“A public official, or another person acting at the instigation or with the explicit or tacit acquiescence of a public official, who inflicts on another person pain or grave suffering, whether physical or mental, for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, shall be sentenced to imprisonment for a term of one to eight years.”
47. 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) provide:
“(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.
“(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.
48. The relevant provisions of the Juvenile Courts Act (Zakon o sudovima za mladež, Official Gazette nos. 111/1997, 27/1998 and 12/2002) read as follows:
“A minor is a person who, at the time of the offence, was at least fourteen but not older than eighteen. A young adult is a person who, at the time of the offence, was at least eighteen but not older than twenty-one.”
“(1) Sanctions in respect of minors who have committed criminal offences are educative measures, imprisonment of a minor and security measures.
...”
“(1) Educative measures are:
...
(2) special obligations
...”
“(1) A court may order a minor to fulfil one or more special obligations where it finds that appropriate orders or injunctions are needed to influence the minor and his or her conduct.
(2) A court may impose the following obligations:
...
7. to participate in the activities of humanitarian organisations or activities of communal or ecological interest.
...
(7) In connection with the obligation under paragraph 2, point 7 of this section a court may impose a maximum of one hundred and twenty working hours within a period of six months, so as not to hinder the minor’s education or regular employment;
(8) A competent Social Welfare Centre shall supervise the enforcement of the obligation...”
“(1) Criminal proceedings against minors shall be instituted at the request of the State Attorney in respect of all criminal offences.
(2) Prosecution [of minors] in respect of criminal offences generally subject to private prosecution may be instituted if a person authorised [to initiate a private prosecution] has lodged an application for proceedings to be instituted with the competent State Attorney’s Office within three months of learning of the offence and the identity of the perpetrator.”
“In criminal proceedings against a minor [the] victim cannot take the role of prosecutor.”
“(1) Where the State Attorney has decided under section 45 of this Act that there is no ground to request that criminal proceedings be instituted against a minor (Article 174 of the Code of Criminal Procedure), he or she shall notify the victim of this and state the reasons for his or her decision ...
(2) Within eight days after notification [under paragraph 1] has been served on the victim, he or she may request a competent juvenile council of a higher court to decide whether proceedings should be instituted. The division shall decide after it has obtained the opinion of the State Attorney. The division may decide that the proceedings should not be instituted at all or that they should be instituted before a juvenile judge.
(3) Where the division has decided that proceedings should be instituted, the competent State Attorney’s Office shall take over the proceedings against a minor.”
“(1) In respect of criminal offences which carry a sentence of imprisonment not exceeding five years or a fine, the State Attorney may decide not to request that criminal proceedings be instituted, despite the existence of a reasonable suspicion that a minor has committed such an offence, where the State Attorney considers that the proceedings against the minor would not fulfil any purpose in view of the nature of the offence and the circumstances under which it was committed, as well as the previous life and personality of the minor in question. In order to establish these facts, the State Attorney may request information from the [minor’s] parents ... other persons and institutions ... or interview the minor in question ...
(2) The State Attorney shall inform the competent Social Welfare Centre and the victim about his or her decision under paragraph 1 of this section and shall inform the latter of his or her right to bring any compensatory claim he or she might have in civil proceedings...”
“(1) The State Attorney may make his or her decision not to institute proceedings (section 63) subject to the minor’s willingness to:
...
(b) participate in the activities of humanitarian organisations or activities of communal or ecological interest (within the limits of section 9(2).22).
...”
“(1) A request that preparatory proceedings be instituted shall be lodged with a competent juvenile judge by the State Attorney.
(2) Where the juvenile judge agrees with the request she or he shall issue a decision that preparatory proceedings are to be instituted. ...”
49. The relevant part of the Rules on the State Attorney’s Offices (Pravilnik o unutarnjem poslovanju u državnim odvjetništvima, Official Gazette no. 106/02) reads:
“A victim, a party represented by a State Attorney’s Office ... or an interested person, other than a suspect, an accused or an opposing party in the proceedings, may consult a criminal, civil or other case file held by the State Attorney. Such persons may also be allowed to copy the case file in whole or in part.
Permission to consult or copy the case file shall be given by the State Attorney or the official in charge of a particular case file.”
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 14
3