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JUDGMENT
STRASBOURG
11 July 2017
FINAL
11/10/2017
This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.
Ž.B. v. CROATIA JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 47666/13) against the
Republic of Croatia lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Croatian national, Ms Ž.B. (“the applicant”),
on 16 July 2013. The President of the Section decided that the applicant’s
name would not be disclosed (Rule 47 § 4 of the Rules of Court).
2. The applicant, who had been granted legal aid, was represented by
Ms I. Bojić, a lawyer practising in Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Ms Š. Stažnik.
3. Ksenija Turković, the judge elected in respect of Croatia, withdrew
from sitting in the case (Rule 28 of the Rules of Court). The President of the
Chamber decided to appoint Nebojša Vučinić, the judge elected in respect
of Montenegro, to sit as an ad hoc judge (Rule 29 § 2(a)).
4. The applicant alleged that the domestic authorities had failed
effectively to discharge their positive obligations in relation to acts of
domestic violence against her, as required under Articles 3 and 8 of the
Convention. On 8 September 2014 the application was communicated to the
Government.
THE FACTS
1. Constitution
19. The relevant provisions of the Constitution of the Republic of
Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990,
135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001,
76/2010, 85/2010 and 5/2014) read as follows:
Article 23
“No one shall be subjected to any form of ill-treatment ...”
Article 35
“Everyone has the right to respect for and legal protection of his or her private ... life
.. ”
Domestic violence
Article 215a
“A family member who by an act of violence, ill-treatment or particularly
contemptuous behaviour places another family member in a humiliating position shall
be sentenced to imprisonment for a term of between six months and five years.”
Bodily harm
Article 117
“(1) Whoever inflicts bodily harm on another person or impairs his or her health
shall be punished by imprisonment for a term of up to one year.
(2) Whoever commits the act referred to in paragraph (1) towards a family member
... shall be punished by imprisonment for a term of up to three years.
(3) The criminal offence referred to in paragraph (1) shall be subject to private
prosecution.”
Threat
Article 139
“(2) Whoever seriously threatens to kill or to inflict serious bodily harm on another
or a person close to him or her, or to kidnap or deprive a person of his or her liberty,
or inflict harm by setting fire, causing an explosion by using ionising radiation,
weapons, dangerous tools or by other dangerous means or to destroy a person’s social
status or material existence, shall be punished by imprisonment for a term of up to
three years.
...
(4) ... [T]he criminal offence referred to in paragraph (2) of this Article shall be
prosecuted at the request [of the victim], save for an offence ... committed ... against
... a close person [which shall be prosecuted ex officio].”
23. According to the annotated final draft of the 2011 Criminal Code,
the reason for abolishing domestic violence as a separate offence, as
previously provided for under Article 215a of the 1997 Criminal Code, was
the vagueness of the offence and the fact that it overlapped with the
Ž.B. v. CROATIA JUDGMENT 5
Domestic violence
179a
“Whoever seriously breaches the provisions on protection from domestic violence
and thereby instils fear in his or her family member or a person close to him or her, or
causes fear for that person’s safety or the safety of another person close to him or her,
or places the person in a humiliating position, which does not amount to a more
serious criminal offence, shall be punished by imprisonment for a term of up to three
years.”
26. Article 3 of the Criminal Code (temporal application of criminal
legislation), as amended in 2011 and retained in further amendments,
provides:
“(2) If after the commission of the offence, and before the adoption of the final
judgment, the law has changed once or several times, the most lenient law for the
perpetrator shall be applicable.
(3) If, in cases referred to in paragraph 2 of this Article, the title or description of the
offence has changed, the court shall examine whether there is a legal continuity so as
to consider the facts of the case under the constituent element of a relevant offence
under the new law and if it finds that there is [continuity] it shall apply the law which
is more lenient for the perpetrator. There is no criminal offence if there is no legal
continuity.”
Article 2
“(1) Criminal proceedings shall be instituted and conducted only at the request of a
competent prosecutor. ...
6 Ž.B. v. CROATIA JUDGMENT
Article 11
“Nobody can be tried twice for the same offence, in respect of which a final court
decision has been adopted.”
28. Articles 47 to 61 regulated the rights and duties of private
prosecutors and of injured parties acting as subsidiary prosecutors. A private
prosecutor (privatni tužitelj) was an injured party who brought a private
prosecution in respect of criminal offences for which such a prosecution
was expressly allowed by the Criminal Code (namely, offences of a lesser
degree). An injured party acting as a subsidiary prosecutor (oštećeni kao
tužitelj) could take over criminal proceedings in respect of criminal offences
subject to public prosecution where the relevant prosecuting authorities, for
whatever reason, had decided not to prosecute (Article 55). When acting as
a subsidiary prosecutor, the victim had the same procedural rights as the
State Attorney’s Office would have had as public prosecuting authority,
save for those vested in the State Attorney’s Office as a State body. Under
Article 58, the State Attorney’s Office was authorised, on a discretionary
basis, to take over a prosecution from a subsidiary prosecutor at any point
before the end of the trial.
29. Under Article 341 the competent prosecutor was authorised to
amend or to submit a new indictment during the trial and the defence was
guaranteed the right to have sufficient time to prepare for such an amended
or new indictment. Article 350 provided that the competent court is not
bound by the legal qualification of an offence by the prosecutor.
30. On 18 December 2008 a new Code of Criminal Procedure was
enacted (Official Gazette, nos. 152/2008, with further amendments). The
new Code of Criminal Procedure came fully into force on 1 September
2011, but did not apply to criminal proceedings instituted under the 1997
Code of Criminal Procedure (see paragraphs 27-29 above), for which that
Code remained applicable. In so far as relevant for the case at issue, the new
Code of Criminal Procedure did not bring substantial changes to the system
of private and public criminal prosecutions.
Ž.B. v. CROATIA JUDGMENT 7
Rights of personality
Section 19
“(1) All natural persons or legal entities are entitled to protection of their rights of
personality [prava osobnosti] under the conditions provided for by law.
(2) Rights of personality within the meaning of this Act are the right to life, to
physical and mental health, reputation, honour, dignity, name, privacy of personal and
family life, liberty, etc.”
Section 1046
“Damage may result from ... an infringement of rights of personality (non-pecuniary
damage).”
Request for elimination of risk of damage
Section 1047
“(1) Any person may request the elimination of a major source of danger for him or
her or for another person, as well as the cessation of activities causing disturbance or a
risk of damage if such disturbance or damage cannot be prevented by applying the
appropriate measures.
(2) The court shall order, at the request of an interested party, the taking of
appropriate action to prevent the occurrence of damage or disturbance, or to eliminate
a source of danger, at the expense of the possessor of such a source of danger, if the
latter fails to do so himself or herself. ”
proportionate and dissuasive sanctions, taking into account their seriousness. These
sanctions shall include, where appropriate, sentences involving the deprivation of
liberty which can give rise to extradition.
...
Article 46 – Aggravating circumstances
Parties shall take the necessary legislative or other measures to ensure that the
following circumstances, insofar as they do not already form part of the constituent
elements of the offence, may, in conformity with the relevant provisions of internal
law, be taken into consideration as aggravating circumstances in the determination of
the sentence in relation to the offences established in accordance with this
Convention:
a. the offence was committed against a former or current spouse or partner as
recognised by internal law, by a member of the family, a person cohabiting with the
victim or a person having abused her or his authority;
b. the offence, or related offences, were committed repeatedly;
c. the offence was committed against a person made vulnerable by particular
circumstances;
d. the offence was committed against or in the presence of a child;
e. the offence was committed by two or more people acting together;
f. the offence was preceded or accompanied by extreme levels of violence;
g. the offence was committed with the use or threat of a weapon;
h. the offence resulted in severe physical or psychological harm for the victim;
i. the perpetrator had previously been convicted of offences of a similar nature.
...
Chapter VI – Investigation, prosecution, procedural law and protective measures
Article 49 – General obligations
1. Parties shall take the necessary legislative or other measures to ensure that
investigations and judicial proceedings in relation to all forms of violence covered by
the scope of this Convention are carried out without undue delay while taking into
consideration the rights of the victim during all stages of the criminal proceedings. ...”
37. The explanatory note to the Istanbul Convention explains that the
obligations contained in Articles 33 to 39 require parties to the Convention
to ensure that particular intentional conduct is criminalised. However, the
Istanbul Convention does not oblige States to introduce specific provisions
criminalising the conduct described by that Convention (paragraph 155).
Furthermore, Article 46 requires the State Parties to ensure that the
circumstances mentioned in that provision be taken into consideration as
aggravating circumstances in the determination of the penalty for the
offences established in the Convention. However, that is relevant only if
those aggravating circumstances are not already part of the constituent
elements of the offence under national law (paragraph 234).
10 Ž.B. v. CROATIA JUDGMENT
THE LAW
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
Article 8
“1. Everyone has the right to respect for his private ... life”.
Ž.B. v. CROATIA JUDGMENT 11
A. Admissibility
B. Merits
framework which, after the entry into force of the 2011 Criminal Code, no
longer provided for a criminal offence of domestic violence. In her view,
this had resulted in the trivialisation of acts of domestic violence, allowing
their prosecution only in the context of the minor offences law. Moreover,
the applicant considered that the State had failed to ensure an adequate
transition to the new criminal-justice framework concerning domestic
violence so as to allow the completion of pending criminal cases of
domestic violence. As a consequence, she had not even been in a position to
institute minor offences proceedings, as all the relevant statutory limitation
periods had expired. She had therefore been denied any form of legal
protection from the acts of domestic violence to which she had been
subjected.
46. The Government submitted that there had been a pressing need for
reforms to the prosecution of domestic violence as provided for under the
1997 Criminal Code. In particular, Article 215a of the 1997 Criminal Code
had been vague and ambiguous, and had therefore raised an issue of legal
certainty in its application. Moreover, it had opened the possibility of
duplication of criminal and minor offences proceedings for the same acts of
domestic violence, which had raised an issue from the perspective of the ne
bis in idem principle as defined in the Court’s case-law. The Government
further stressed that although the 2011 Criminal Code had abolished the
separate criminal offence of domestic violence, continuity of criminal
responsibility had been secured through the criminalisation of acts of
domestic violence as aggravating forms of other criminal offences, most of
which had been subject to public prosecution. In the Government’s view, in
the case at issue the applicant had been provided with an effective
opportunity to pursue private criminal proceedings against B.B. but she had
failed to avail herself of that opportunity. The Government therefore
considered that there had been nothing suggesting inadequacy of the
domestic legal framework for the protection of victims of domestic violence
from the perspective of the State’s positive obligations under the
Convention.
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
A. Damage
68. The applicant also claimed 16,625 Croatian kunas (HRK) for the
costs and expenses incurred before the Court.
69. The Government considered the applicant’s claim unsubstantiated
and excessive.
70. According to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. Regard being had to the documents in its possession and the
above criteria, as well as the sum to which the applicant’s lawyer is entitled
on account of the legal aid granted (EUR 850), the Court considers it
reasonable to award the sum of EUR 115, plus any tax that may be
chargeable to the applicant, in respect of her costs and expenses before the
Court.
C. Default interest
71. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
4. Holds,
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be converted
into Croatian kunas at the rate applicable at the date of settlement:
(i) EUR 7,500 (seven thousand five hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 115 (one hundred and fifteen euros), plus any tax that
may be chargeable to the applicant, in respect of costs and
expenses;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;