CASE OF STARČEVIĆ v. CROATIA
Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
5. The applicant was born in 1974 and lives in Split. 6. On 17 May 2004 the applicant’s father was hit by a car while attempting to cross a motorway. He suffered serious bodily injury and died at the scene. 7. On the same day the Split Police Department (Policijska uprava Splitsko-dalmatinska) interviewed two witnesses and the driver of the car, Z.K. The police also carried out the necessary tests to measure Z.K.’s alcohol level, which showed that he had been intoxicated at the time of the accident. 8. The police informed an investigating judge of the Split County Court (Županijski sud u Splitu) of the accident. Later that day the investigating judge, assisted by a road traffic expert, carried out an on-site inspection. 9. On 18 May 2004 the road traffic expert submitted his report to the investigating judge, finding that in crossing the motorway the applicant’s father had caught the driver of the car by surprise, which had caused the accident. 10. On 19 May 2004 the investigating judge obtained a medical report concerning the applicant’s father, indicating that he had been intoxicated at the time of the accident. 11. Meanwhile, the case file was forwarded to the Split Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Splitu – “the State Attorney’s Office”) for its assessment of the relevant facts. 12. On 18 June 2004 the State Attorney’s Office obtained a medical report confirming that the driver of the car Z.K. had been under the influence of alcohol at the time of the accident. 13. On 20 December 2004 the State Attorney’s Office asked the investigating judge of the Split County Court to open an investigation in respect of Z.K. on suspicion of causing a road accident resulting in death. 14. Before deciding on that request, the investigating judge questioned Z.K. on 19 January 2005. He denied the charges, arguing that when the applicant’s father had crossed the motorway he had been caught by surprise, and had had no way of avoiding the accident. 15. On 7 February 2005 the investigating judge declined to open the investigation on the grounds that there was no reasonable suspicion that a criminal offence had been committed. This was upheld by a three-judge panel of the Split County Court on 22 February 2005. 16. The case file was then returned to the State Attorney’s Office, which was informed of its right to appeal against the decision of the Split County Court. There is no evidence before the Court that the applicant was informed of this decision. 17. The State Attorney’s Office decided not to appeal. There is no evidence before the Court that the applicant was informed of this decision. 18. On 16 June 2006 the applicant inquired with the Split County Court about the progress of the case. He indicated that the last information he had received had been the on-site inspection report. He explained that he had been away for a while, so if any new documents had been forwarded to him it was possible that he had not received them. 19. On 3 July 2006 the investigating judge of the Split County Court informed the applicant that the investigation into the circumstances of his father’s death had been discontinued. 20. On 7 July 2006 the applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) against the Split County Court’s decision refusing to open the investigation into the accident. 21. On 19 September 2006 the Supreme Court allowed the applicant’s appeal and ordered the investigation. The Supreme Court held that the Split County Court’s conclusion had been premature, since several crucial facts concerning the accident had remained unanswered. It therefore instructed the investigating judge to question witnesses and to take whatever further investigative measures which were necessary, such as a reconstruction of events. 22. On 16 November 2006 the investigating judge questioned two witnesses and concluded the investigation. He also informed the applicant that he could, if he considered it appropriate, indict Z.K. in the criminal courts on charges of causing a road accident. 23. On 24 November 2006 the applicant, acting as a subsidiary prosecutor and through his lawyer, lodged a request to prosecute with the Split Municipal Court (Općinski sud u Splitu) against Z.K., on charges of causing a road accident resulting in the death of his father, punishable under Article 272 §§ 1 and 3 of the Criminal Code (see paragraph 41 below). 24. The first hearing scheduled for 6 December 2006 before a single judge of the Split Municipal Court was adjourned because the parties failed to appear, as they had not been properly summoned. The trial judge indicated that he would issue another written order for the next hearing. 25. Having received no subsequent summonses, on 21 October 2009, the applicant urged the Split Municipal Court to schedule a hearing, arguing that he had attempted to contact the court several times to ask it to expedite the proceedings. 26. At a hearing held on 3 December 2009 Z.K. pleaded not guilty and the hearing was adjourned. Two witnesses appeared at the hearing but were not questioned. 27. A further hearing scheduled for 15 February 2010 was adjourned because the investigating judge had failed to forward its case file to the Split Municipal Court. 28. At a hearing on 14 April 2010 the single judge of the Split Municipal Court questioned Z.K. again, who reiterated his not guilty plea. The judge also questioned the applicant and the two witnesses. 29. Another hearing was held on 18 June 2010, at which the trial judge questioned Z.K. and the expert witness. 30. On the same day the Split Municipal Court acquitted Z.K. on charges of causing the road accident. 31. The applicant lodged an appeal with the Split County Court, which on 17 May 2011 quashed the first-instance judgment because of the procedural errors in the composition of the trial court. The relevant part of the judgment reads: “... the first instance court did not sit in a proper formation because the trial was held before a single judge instead before a panel composed of a judge and two lay judges. The offence under Article 272 §§ 1 and 3 of the Criminal Code is punishable by imprisonment between one and ten years, and under Article 18 §§ 1 and 2 of the Code of Criminal Procedure for the offences punishable by imprisonment of more than five years, the Municipal Courts must sit in panels composed of a judge and two lay judges. ... It should be also noted that for the offence under Article 272 §§ 1 and 3 of the Criminal Code, that is in issue in the present case, because of the prescribed penalty, the trial should be held according to the rules of ordinary, and not summary, procedure, and that such [ordinary criminal] proceedings can be held only on an indictment, against which the accused has the right to lodge an objection, and not based on a request to prosecute.” 32. In the resumed proceedings, on 15 September 2011 the Split Municipal Court asked the applicant to specify whether he had submitted an indictment (optužnica) or a request to prosecute (optužni prijedlog). The relevant part of the letter reads: “In accordance with Article 269 § 2 of the Code of Criminal Procedure the submission named [request to prosecute] is being returned to the [subsidiary] prosecutor for amendment in accordance with Article 268 § 1 (6) of the Code of Criminal Procedure. That is to say, the subsidiary prosecutor must indicate whether or not his submission is actually an indictment.” 33. The applicant replied on 28 September 2011 indicating that his submission was an indictment rather than a request to prosecute. 34. On 30 November 2011 the Split Municipal Court discontinued the proceedings on the grounds that the applicant’s indictment had not been drafted properly, as it did not contain the statement of reasons on which it was based. The relevant part of this decision reads: “The subsidiary prosecutor on 24 November 2006 submitted a request to prosecute against the accused Z.K. .... Under Article 269 § 2 of the Code of Criminal Procedure such submission, titled request to prosecute, was returned to the [subsidiary] prosecutor for amendment under Article 268 § 1 (6) of the Code of Criminal Procedure. The representative of the subsidiary prosecutor submitted before this court his amendment of the [above-noted document] indicating that the title “request to prosecute” should be changed to “indictment”, and that he had no other amendments. Since the [subsidiary] prosecutor failed to comply with Article 268 § 1 (6) of the Code of Criminal Procedure (’s defence and the prosecutor’s position on the defendant’s defence), this court decided [to discontinue the proceedings].” 35. The applicant lodged an appeal on 9 December 2011 with the Split County Court, contending that he had only been invited to indicate whether he had instituted the proceedings by a request to prosecute or an indictment and that he had replied to that question accordingly. He also pointed out that the courts had accepted his indictment in 2006, conducted the proceedings and decided the case on the merits. Together with the appeal, the applicant submitted an amended indictment containing the statement of reasons. 36. On 17 April 2012 the Split County Court dismissed the applicant’s appeal as ill-founded, endorsing the reasoning of the Split Municipal Court. 37. On 16 May 2012 the Split Municipal Court ordered the applicant to pay Z.K.’s legal costs and expenses in the amount of 17,500 Croatian kunas. This decision was upheld by the Split County Court on 11 June 2012. 38. Also on 11 June 2012 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) regarding the manner in which the criminal law mechanisms had been implemented in his case. 39. On 20 September 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the decisions of the lower courts did not concern the applicant’s civil rights or obligations or any criminal charge against him.