CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 12 septembre 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sC09AF19 { width:186.93pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }     FIRST SECTION DECISION Application no. 33438/16 Josip MOLNAR against Croatia The European Court of Human Rights (First Section), sitting on 12   September 2017 as a Committee composed of:   Kristina Pardalos, President,   Ksenija Turković,   Tim Eicke, judges, and Renata Degener, Deputy Section Registrar, Having regard to the above application lodged on 7 June 2016, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Josip Molnar, is a Croatian national, who was born in 1955 and lives in Dekanovec. He was represented before the Court by Mr Z. Novaković, a lawyer practising in Zagreb. 2.     The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Background to the case 4.     The applicant’s son, D.M., served as a police officer in the Međimurska police. 5.     He warned his superiors on several occasions about unlawful practices and possible corruption in the police. His allegations gave rise to several disciplinary proceedings against the relevant police officers. 6.     The applicant’s son was subject to a criminal investigation in connection with a suspicion of disclosure of confidential information related to the minor offences proceedings against a third party. 2.     The applicant’s son’s death 7.     On 21 January 2013 the applicant’s son did not come to work and he could not be reached on his mobile telephone. Following an extensive search by the police, on the same day at around 7 p.m. the applicant’s son’s dead body was found at a remote place near a river, placed in the back seat of his car with a gunshot wound to his forehead. 8.     The police secured the scene until the on-duty Deputy State Attorney and the crime-scene investigators appeared at the scene. An extensive on-site inspection was carried out by the crime-scene investigators supervised by the Deputy State Attorney. The applicant’s son’s service handgun was found near the body and a bullet case was also found in the car. 9.     At the same time, a coroner carried out an examination of the body. In addition to the gunshot wound to the forehead, the coroner found no other signs of injury on the applicant’s son’s body. The coroner also concluded that the applicant’s son had died at an unspecified time on 20 January 2013. No autopsy was requested on the grounds that all the circumstances of the case suggested suicide. 3.     Investigation into the applicant’s son’s death 10.     Following the discovery of the applicant’s son’s body, an extensive investigation, supervised by the Varaždin County State Attorney’s Office ( Županijsko državno odvjetništvo u Varaždinu ), was carried out. 11.     An expert report of the Ministry of the Interior’s Centre for Forensic Analysis in Zagreb ( Ministarstvo unutarnjih poslova, Centar za kriminalistička vještačenja – “the Forensic Centre”) found that there were substantial traces of gunshot residue on the applicant’s son’s hands. The report also found that the bullet had been fired from the applicant’s son’s service handgun and that a bullet case found in the car belonged to a bullet fired from that weapon. Further, a forensic-medicine expert J.Š. found that the position and nature of the injury, the marks on the head and body, the position of the body and other circumstances of the case at issue corresponded to those typically found in cases of suicide by firing to the forehead.   At the request of the Varaždin County State Attorney’s Office, the police carried out a number of interviews which showed that the applicant’s son had had conflicts with his colleagues. It was also established that he had taken loans for significant amounts and that he had spent a significant sum of money on sport betting. 12.     On 6 March 2013 the Varaždin County State Attorney’s Office closed the case on the grounds that the applicant’s son’s death had been a result of suicide. 13.     On 16 May 2014 the applicant lodged a criminal complaint against an unknown perpetrator with the Varaždin County State Attorney’s Office, arguing that his son had been murdered. 14.     Following the applicant’s criminal complaint, the Varaždin County State Attorney’s Office carried out a number of interviews with those involved in the case. It also ordered the police to question a number of other individuals who potentially had information on the circumstances of the applicant’s son’s death. In addition, the Varaždin County State Attorney’s Office questioned the Forensic Centre’s ballistics expert who reiterated his previous findings. The forensic-medicine expert J.Š. also explained that an autopsy could clarify the exact position of the applicant’s son’s injury but that would not lead to new information relevant for his conclusion of the circumstances of the death. In a subsequent interview, J.Š. reiterated his findings that an autopsy would not be necessary in the case. He also submitted that the absence of any defensive injuries and the nature of the wound were typical in a case of suicide. In the further course of the investigation, the Varaždin County State Attorney’s Office commissioned a report from a road-traffic expert on the circumstances in which the applicant’s son’s car had been found. 15.     On 20 January 2015 the Varaždin County State Attorney’s Office rejected the applicant’s criminal complaint on the grounds that it had been undoubtedly established that the applicant’s son had not been murdered but that had committed suicide. The Varaždin County State Attorney’s Office, relying on Articles 55 and 217 of the Code of Criminal Procedure (see   paragraphs 25-26 below), stressed that the applicant had not been instructed to take over the further proceedings as a subsidiary prosecutor as the criminal complaint had been lodged against an unknown perpetrator and further investigation could be conducted only in respect of a particular person. 16.     The decision of the Varaždin County State Attorney’s Office was served on the applicant’s lawyer on 22 January 2015. 4.     Other complaints lodged by the applicant 17.     In the period between 2013 and 2014, the applicant complained numerous times to the State Attorney’s Office and the police concerning the manner in which the investigation had been carried out. He also complained to the Parliamentary Petitions and Complaints Committee ( Hrvatski sabor, Odbor za predstavke i pritužbe ) of the conduct of the State Attorney’s Office and the police. 18.     On 4 and 18 March 2014 the police and the Varaždin County State Attorney’s Office respectively provided detailed reports to the Parliamentary Petitions and Complaints Committee on the conduct of the proceedings concerning the applicant’s complaints. 19.     The applicant also lodged a criminal complaint against nine police officers in connection with a suspicion of abuse of office and abuse in service leading to the suicide of his son. 20.     On 5 March 2015 the State Attorney’s Office for the Suppression of Corruption and Organised Crime ( Ured za suzbijanje korupcije i organiziranog kriminaliteta ) rejected the applicant’s criminal complaint on the grounds that there was nothing leading to a conclusion that a criminal offence had been committed to the detriment of the applicant’s son. The applicant was instructed, under Article 55 of the Code of Criminal Procedure (see paragraph 25 below), that he could take over the proceedings as a subsidiary prosecutor. 21.     The decision of the State Attorney’s Office for the Suppression of Corruption and Organised Crime was served on the applicant’s lawyer on   6   March 2015. 22.     In addition, on 13 October 2015 the applicant sent a letter to the Supreme Court ( Vrhovni sud Republike Hrvatske ) complaining of the manner in which the investigation into the circumstances of his son’s death had been conducted. 23.     On 22 March 2016 the Office of the President of the Supreme Court replied by letter that the Supreme Court was not competent to provide individual legal advice, nor was it competent to analyse the manner in which an investigation had been conducted before the relevant State Attorney’s Office. B.     Relevant domestic law 1.     Constitution 24.     Article 21 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) provides that every human being has the right to life. 2.     Code of Criminal Procedure 25.     Under the Code of Criminal Procedure ( Zakon o kaznenom postupku , Official Gazette, nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012, 56/2013, 145/2013 and 152/2014) there is no possibility of a judicial review of a decision not to prosecute. However, the victim has the right to take over the prosecution from the State Attorney if the State Attorney has declined to prosecute, and may act in the proceedings with all the procedural rights which the State Attorney would have as a competent prosecutor. The State Attorney is obliged to notify the victim of its decision refusing to institute further proceedings (Articles 55 and 58). 26.     The Code of Criminal Procedure provides that an investigation cannot be open against an unknown perpetrator (Article 217 § 1) but there is a possibility of conducting certain investigative actions in such cases (Article 214). 27.     Under Article 19f § 1, the Code of Criminal Procedure provides that the Supreme Court has the competence to: examine appeals against the decisions of the County Courts; in exceptional circumstances, examine appeals as a third-instance body; examine the use of extraordinary remedies provided under that Code (reopening of proceedings, application for the protection of legality and application for an extraordinary review of a final judgment), and perform other tasks provided for by the law. COMPLAINT 28.     The applicant complained, under Article 2 of the Convention, of the lack of an effective investigation into the death of his son. THE LAW 29.     Complaining of a lack of an effective investigation into the death of his son, the applicant relied on Article 2 of the Convention, which, in so far as relevant, reads as follows: “1.     Everyone’s right to life shall be protected by law. ...” A.     The parties’ arguments 30.     The Government submitted, in particular, that the applicant had failed to comply with the six-month time-limit when lodging his application with the Court. They pointed out that the final decision concerning the investigation into the applicant’s son’s alleged killing had been adopted on   20 January 2015 and served on the applicant’s lawyer on 22 January 2015. In the Government’s view, the applicant’s subsequent letter to the Supreme Court had been of no relevance for the calculation of the six-month time-limit. They stressed that the applicant had been represented by a lawyer who could have provided him with the relevant legal advice. The Government also argued that the investigation into the applicant’s son’s death had been compliant with the requirements of the procedural limb of Article 2 of the Convention. 31.     The applicant contended that a complaint before the Supreme Court had been an apparently existing domestic remedy and thus his use of that remedy could not be held against him. In his view, the general function of the Supreme Court to ensure consistent application of the law and equal protection of all citizens had suggested, when viewed from the perspective of a lay person, that the Supreme Court had been competent to examine his complaint concerning the failures in the investigation conducted by the State Attorney’s Office. Thus, the final decision in his case had been adopted by the Supreme Court on 22 March 2016. The applicant also argued that the investigation into the circumstances of his son’s death had been incomplete and had lacked impartiality. B.     The Court’s assessment 32.     The Court finds that it is not necessary to address all the issues raised by the parties, as the applicant’s complaint is inadmissible for the following reasons. 33.     As regards the Government’s objections concerning the compliance with the six-month time-limit provided for by Article 35 § 1 of the Convention, the Court reiterates that this six-month time-limit has a number of aims. Its primary purpose is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time (see Sabri Güneş v.   Turkey [GC], no. 27396/06, § 39, 29 June 2012, and El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 135, ECHR 2012). 34.     Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. However, where it is clear from the outset that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of. Article 35 §   1 cannot be interpreted in a manner which would require an applicant to inform the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails her or himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, the Court considers that it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date on which the applicant first became or ought to have become aware of those circumstances (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, §§ 259-260, ECHR 2014 (extracts); see also, Keenan v. the United Kingdom (dec.), no. 27229/95, 22 May 1998; Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001; and Remetin v. Croatia (no. 2), no. 7446/12, § 77, 24 July 2014). 35.     Moreover, where an applicant is entitled to be served automatically with a copy of the final domestic decision, the six-month period starts running from the date of service of the copy of the decision (see Worm v. Austria , 29 August 1997, § 33, Reports of Judgments and Decisions 1997‑V, and Vuletić v. Croatia (dec.), no. 19256/13, § 27, 23 June 2015). 36.     In the case at hand, the Court notes that on 20 January 2015 the Varaždin County State Attorney’s Office rejected the applicant’s criminal complaint concerning the alleged killing of his son. This decision was served on the applicant’s lawyer on 22 January 2015. He was also instructed that no further remedy lay against that decision (see paragraphs 15-16 above). Accordingly, the investigation into the alleged killing of the applicant’s son thereby came to a conclusive end. 37.     The Court also notes that on 5 March 2015 the State Attorney’s Office for the Suppression of Corruption and Organised Crime rejected the applicant’s criminal complaint concerning the alleged abusive conduct towards his son leading to his suicide. This decision was served on the applicant’s lawyer on 6 March 2015. The applicant was instructed that he could take over the proceedings as a subsidiary prosecutor in accordance with Article 55 of the Code of Criminal Procedure (see paragraphs 20-21 above); a possibility of which he chose not to avail himself. Accordingly, the investigation into the circumstances of the applicant’s son’s suicide thereby came to a conclusive end. 38.     However, the applicant lodged the application with the Court more than a year and four months after the service of the Varaždin County State Attorney’s Office’s decision and approximately a year and three months after the service of the decision of the State Attorney’s Office for the Suppression of Corruption and Organised Crime. 39.     In the meantime, the applicant sent a letter to the Supreme Court complaining of the manner in which the investigation into the circumstances of his son’s death had been conducted. This was, however, clearly not a remedy to be exhausted (see paragraphs 22-23 and 25-27 above) and could not therefore interrupt the running of the six-month time-limit (see, for instance, Fernie v. the United Kingdom (dec.), no. 14881/04, 5 January 2006, and Modrić v. Croatia (dec.), no. 21609/06, 4 June 2009). 40.     Moreover, it is should be noted that the decisions rejecting the criminal complaints contained clear instructions in respect of the further available remedies. Those decisions were served on the applicant’s lawyer, who was certainly in a position to explain to the applicant all the legal consequences of those decisions. 41.     It follows from the above that the applicant’s complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible.   Done in English and notified in writing on 5 October 2017. Renata Degener   Kristina Pardalos Deputy Registrar   President