BEKIĆ AND OTHERS v. CROATIA
Inadmissible
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
1. A list of the applicants is set out in the appendix. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 22 August 1991 Dragan Bekić, Nenad Pajić, Miland Kladar and Radovan Kragulj, the applicants’ respective close relatives, were killed. 5. On 12 June 2006 the applicants’ legal representative lodged a criminal complaint with the Sisak County State Attorney’s Office against I.K., V.C., V.K., and M.Š. on charges of war crimes against the civilian population, which concerned the killing of fifteen individuals, including the applicants’ close relatives mentioned in paragraph 4 above. 6. The Sisak County State Attorney’s Office concluded that the applicants’ relatives had been killed in combat between paramilitary groups of the so-called “Serbian Autonomous Region of Krajina” and the Croatian Army or as collateral victims of that combat, so on 11 December 2006 it dismissed the criminal complaint. 7. The applicants took over the prosecution, and on 27 December 2006 lodged a request for an investigation with the Sisak County Court. On 29 January 2007 the court invited the applicants to amend their request to satisfy the requirements prescribed under the Code of Criminal Procedure. The applicants did not reply, and on 23 April 2007 the court declared the request inadmissible. This decision became final on 9 May 2007. 8. The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997) read as follows: “(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) Exceptionally, in respect of certain criminal offences, it may be prescribed by law that criminal proceedings shall be instituted by private prosecution or that the State Attorney’s Office shall institute criminal proceedings by [private] application.” 9. 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 as follows: “(1) Criminal proceedings shall be instituted and conducted at the request of an authorised prosecutor only. (2) In cases involving criminal offences subject to public prosecution, the authorised prosecutor shall be the State Attorney, and in cases involving criminal offences to be prosecuted privately, the authorised prosecutor shall be a private prosecutor. (3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there exists a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution, and there are no legal impediments to the prosecution of that person. ... (6) Where the State Attorney finds no grounds to institute or conduct criminal proceedings, the injured party acting 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 injured parties acting as subsidiary prosecutors. The Criminal Code distinguishes between these two roles. A private prosecutor (privatni tužitelj) is the injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (offences of a lesser degree). An injured party acting as a subsidiary prosecutor (oštećeni kao tužitelj) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecution authorities have, for whatever reason, decided not to prosecute. “(1) Requests to prosecute shall be lodged with the competent State Attorney’s Office and private prosecutions with the competent court. (2) Where the injured party has lodged a criminal complaint ... it shall be considered that he or she has also 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 by private prosecution, the criminal complaint or 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 the party’s right to take over the proceedings, as well as to provide instructions to that party regarding the steps to be taken. “(1) Private prosecutions, bills of indictment, requests to prosecute, legal remedies and other statements and information shall be submitted in writing unless otherwise provided by law. (2) The submissions referred to in paragraph 1 shall be comprehensible and contain the necessary information for the authorities to act upon them. (3) Unless otherwise provided in this Act, the court conducting the proceedings shall invite a person who has made submissions which do not contain the necessary information or are incomprehensible to supplement them. Where the submissions have not been amended as required, the court shall declare them inadmissible. (4) In its invitation to amend the submissions, [the court conducting the proceedings] shall warn the person concerned about the consequences of not complying with the instructions.” “(1) Citizens shall report criminal offences subject to public prosecution. ...” “(1) A [criminal] complaint shall be lodged with the competent State Attorney’s [Office] in writing or orally. ...” Article 188 governs, inter alia, the required contents of a request for an investigation, namely details of the person in respect of whom the request is being submitted, a description and the legal classification of the relevant offence, the circumstances confirming there exists a reasonable suspicion that the person concerned has committed the offence, and any existing evidence. Article 205 § 1 allows a private prosecutor and the injured party acting as a subsidiary prosecutor to lodge with an investigating judge of a competent court a request for prosecution and other submissions.