CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 octobre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .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 } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .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 } .sA36B60A1 { font-family:Arial; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 13 October 2016   FIFTH SECTION Application no. 39894/11 Mesud REKIĆ against Bosnia and Herzegovina lodged on 6 June 2011 STATEMENT OF FACTS The applicant, Mr Mesud Rekić, is a citizen of Bosnia and Herzegovina, who was born in 1953 and lives in Cazin. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 30 September 2002 the applicant, acting on his own behalf and on behalf of his son who was minor at the time, lodged a criminal complaint and a claim for damages with the Cazin Municipal Court (“the Municipal Court”) against M.R., R.R. and A.R. He alleged that on 4 September 2002 those persons had inflicted minor bodily harm on him and his son. On 24 February 2003 the Municipal Court found M.R. guilty of causing the applicant minor bodily harm and imposed a suspended sentence of one month’s imprisonment with one year’s probation. R.R. and A.R were acquitted. The applicant was instructed to submit his claim for damages in civil proceedings. Both the applicant and M.R. appealed against that judgment. On 12   April 2004 the Bihać Cantonal Court (“the Cantonal Court”) quashed the judgment of 24   February 2003 and remitted the case for a re-trial. It found that the Municipal Court had failed to examine the part of the criminal complaint concerning the applicant’s son. On 26 May 2010 the Municipal Court discontinued the proceedings, noting that the limitation period for prosecuting the offence allegedly committed by M.R., R.R. and A.R had expired. The offence had been allegedly perpetrated on 4 September 2002 and the last procedural step had been taken on 12 April 2004, when the Cantonal Court judgment had been delivered to the parties. Article 121   § 6 of the 1998 Criminal Code provided that the statutory limitation period for minor bodily harm was two years calculated from the time the offence was committed. Article 122 of the same Code provided that the prosecution was absolutely barred in all cases if the time elapsed since the perpetration of the offence was more than two times the limitation period which for the offence in question had expired on 5   September 2006. Upon the appeal of the applicant, on 20 July 2010 the Cantonal Court upheld the decision to discontinue the proceedings. On 27 August 2010 the applicant lodged an appeal to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) complaining that he had been deprived of effective access to a court. On 21 December 2010 the Constitutional Court decided that it lacked jurisdiction ratione materiae to examine the case because Article 6 of the Convention and Article II/3.e) of the Constitution of Bosnia and Herzegovina did not guarantee the right to bring criminal proceedings against a third party or to secure a conviction. This decision was delivered to the applicant on 11 January 2011. B.     Relevant domestic law 1.     Minor bodily harm Article 178 of the 1998 Criminal Code (Official Gazette of the Federation of Bosnia and Herzegovina, “OG FBH”, nos. 43/98 2/99, 15/99, 29/00 and 59/02), which was in force at the relevant time, made it an offence to inflict actual minor bodily harm, defined as an injury to health. The maximum penalty on conviction was one year’s imprisonment. Minor bodily harm was privately prosecuted (Article 178 § 4 of the Code). The prosecution was thus brought directly by the victim of the offence and not by the public prosecutor. 2.     Limitation periods for the prosecution of criminal offences Pursuant to Article 121 § 1 of the 1998 Criminal Code, the prosecution of an offence was barred after a certain period of time. That period varied in relation to the penalty provided for the offence and ranged from thirty-five years for offences punishable by long-term imprisonment to two years for offences punishable by one year’s imprisonment or less (Article 121 § 1 (1) and (6)). The period started to run from the commission of the offence (Article 122 § 1 of the Code) and was interrupted by every act effected by the competent authorities with a view to prosecuting the offender (Article   122 § 3 of the Code). Such interruptions notwithstanding, prosecution was no longer possible if the time elapsed since the perpetration of the offence was more than two times the limitation period (Article 122 §   6 of the Code). Accordingly, the prosecution of an offence punishable by one year’s imprisonment or less, such as minor bodily harm, was absolutely barred after the expiration of four years (two times two years) from its perpetration. Upon the expiration of the limitation period, the proceedings against the alleged offender had to be discontinued (Articles 231 § 3 and 239 § 1 (d) of the 2003 Code of Criminal Procedure, OG FBH nos. 35/03, 37/03, 56/03, 78/04, 28/05, 55/06, 27/07, 53/07, 9/09, 12/10, 8/13 and 59/14). 3. Tort claims in civil proceedings and in the context of criminal proceedings The victim of a tort which is also a privately prosecutable criminal offence has the choice of bringing a claim against the alleged tortfeasor in the civil courts, or of making a civil party claim in the context of criminal proceedings (Article 207 § 1 of the 2003 Code of Criminal Procedure and section 377 of the 1978 Civil Obligations Act, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85 and 57/8, and Official Gazette of the Republic of Bosnia and Herzegovina nos. 2/92, 13/93 and 13/94). If the criminal proceedings are discontinued the claim is not examined, but it may be brought separately in a civil court (Article 212 § 4 of the   2003   Code). The criminal court rules on the claim only when giving a judgment on the merits of the criminal case and only if it finds that the accused is guilty (Article 212 § 3 of the 2003 Code). In the case of acquittal, the criminal court will instruct the victim of a tort to bring his or her claim before a civil court (Article 212 § 4 of the 2003 Code). The claim for damages against the alleged tortfeasor in a civil court becomes statute-barred at the same time as the criminal prosecution (section   377 of the 1978 Civil Obligations Act). All tort claims are extinguished with the expiration of five years after the commission of the tort (section 376 § 2 of the 1978 Act). COMPLAINT The applicant complains under Article 6 § 1 of the Convention that as a result of the discontinuation of the criminal proceedings against M.R., R.R. and A.R. and the consequent non-examination of his civil-party claim he was denied effective access to a court. QUESTION TO THE PARTIES Has there been a breach of the applicant’s right of access to a court, guaranteed by Article 6 § 1 of the Convention, on account of the fact that his civil claim made in the context of the criminal proceedings against M.R., R.R. and A.R. was not examined as a result of their discontinuation due to the expiration of the limitation period (see Dinchev v. Bulgaria , no.   23057/03, 22 January 2009, and Tonchev v. Bulgaria , no.   18527/02, 19   November 2009)?