Last Updated on March 18, 2021 by LawEuro
INTRODUCTION. The case concerns the applicant’s complaints, under Article 6 §§ 1 and 3 (c) of the Convention, that in the criminal proceedings against him the submissions of the State Attorney’s Office were not communicated to the defence, that he was not given an opportunity to be present at the sessions of the appeal panel and that the proceedings before the Constitutional Court were excessively lengthy.
FIRST SECTION
CASE OF GRUBIĆ v. CROATIA
(Application no. 33602/17)
JUDGMENT
STRASBOURG
18 March 2021
This judgment is final but it may be subject to editorial revision.
In the case of Grubić v. Croatia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Krzysztof Wojtyczek, President,
Erik Wennerström,
Lorraine Schembri Orland, judges,
and Attila Teplán, Acting Deputy Section Registrar,
Having regard to:
the application (no. 33602/17) 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, Mr Ognjen Grubić (“the applicant”), on 2 May 2017;
the decision to give notice to the Croatian Government (“the Government”) of the complaints under Article 6 §§ 1 and 3 (c) of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 16 February 2021,
Delivers the following judgment, which was adopted on that date:
1. The case concerns the applicant’s complaints, under Article 6 §§ 1 and 3 (c) of the Convention, that in the criminal proceedings against him the submissions of the State Attorney’s Office were not communicated to the defence, that he was not given an opportunity to be present at the sessions of the appeal panel and that the proceedings before the Constitutional Court were excessively lengthy.
THE FACTS
2. The applicant was born in 1972 and lives in Zagreb. He was represented by Ms V. Drenški Lasan, a lawyer practising in Zagreb.
3. The Government were represented by their Agent, Ms Š. Stažnik.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Criminal proceedings against the applicant
5. On 7 May 2007 the Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta) brought criminal proceedings against the applicant and six other defendants in the Zagreb County Court (Županijski sud u Zagrebu). The applicant was charged with two counts of aggravated murder and armed robbery and one count of forgery of documents and endangering life or property through dangerous acts or means. On 8 April 2009 the charges against the applicant were reduced to one count of aggravated murder and armed robbery.
6. On 21 April 2009 the Zagreb County Court found the applicant guilty and sentenced him to thirty years’ imprisonment. It also found two other defendants guilty on some of the charges brought against them and acquitted the four remaining defendants of all charges.
7. On 16 September 2009 the Office for the Suppression of Corruption and Organised Crime lodged an appeal against the Zagreb County Court’s judgment with the Supreme Court (Vrhovni sud Republike Hrvatske), seeking, inter alia, a harsher sentence for the applicant.
8. On 21 September 2009 the applicant also appealed against the Zagreb County Court’s judgment, challenging the factual and legal grounds for his conviction and sentence, and complaining of a number of substantive and procedural flaws in the trial and the judgment. He asked that he and his lawyer be invited to attend the session of the appeal panel.
9. During the appeal proceedings (hereinafter the “second-instance proceedings”) the case file was forwarded to the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske), which submitted a reasoned opinion to the Supreme Court, calling for the dismissal of the appeal. The opinion was not forwarded to the defence.
10. On 11 November 2009 the Supreme Court informed the parties that a session of the appeal panel would be held on 16 December 2009. The parties were invited to attend, but it was expressly stated that the presence of the defendants, who were in pre-trial detention and were represented by a lawyer, would not be ensured, and that there would be no order for them to be brought to court.
11. On 16 December 2009 the Supreme Court held a session in the presence of the lawyers representing the applicant and the other defendants and of the Deputy State Attorney of the Republic of Croatia (Zamjenik Glavnog državnog odvjetnika Republike Hrvatske – “the Deputy State Attorney”). The Supreme Court stated that it did not deem it expedient to have the applicant, who was represented by a lawyer, brought from pre-trial detention. The Deputy State Attorney confirmed the proposal submitted under Article 373 § 2 of the Code of Criminal Procedure (see paragraphs 9 above and 25 below). The parties stated that they had no objections as to how the session had been conducted or to the content of its record, which was signed by the appeal panel’s president and the clerk.
12. On the same day the Supreme Court dismissed the applicant’s appeal as unfounded and upheld his conviction. It also quashed the first-instance judgment in respect of the defendants who had been acquitted of all charges and remitted that part of the case for retrial.
13. On 24 June 2010 the applicant’s lawyer lodged a further appeal against the judgment of 16 December 2009 with the Supreme Court, reiterating the previous arguments and asking that she and the applicant be invited to attend the relevant session (see paragraph 26 below). The applicant also lodged an appeal in person in which he confessed that he had committed the armed robbery but continued to deny the charge of aggravated murder. Neither the lawyer nor the applicant complained that during the second-instance proceedings the prosecution’s submission had not been forwarded to the defence or that the applicant had not been invited to the session of the appeal panel.
14. During the ensuing proceedings before the Supreme Court (hereinafter the “third-instance proceedings”), the case file was forwarded to the State Attorney’s Office of the Republic of Croatia, which lodged a reasoned opinion with the Supreme Court, calling for the dismissal of the appeal. The opinion was not forwarded to the defence.
15. On 8 July 2010 the Supreme Court informed the parties that a session would be held on 8 September 2010. The parties were invited to attend, but it was expressly stated that the applicant’s presence would not be ensured, and that there would be no order for him to be brought to court from pre-trial detention.
16. On 8 September 2010 the Supreme Court held a session in the presence of the applicant’s lawyer and the Deputy State Attorney. The Supreme Court stated that it did not deem it expedient to have the applicant, who was represented by a lawyer, brought from pre-trial detention. The Deputy State Attorney confirmed the proposal submitted under Article 373 § 2 of the Code of Criminal Procedure (see paragraphs 14 above and 25 below). The parties stated that they had no objections as to how the session had been conducted or to the content of its record, which was signed by the appeal panel’s president and the clerk.
17. On the same day the Supreme Court, sitting as the court of final appeal, dismissed the applicant’s appeal as unfounded and upheld the second-instance judgment of 16 December 2009.
18. On 25 October 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining that the criminal proceedings against him had been unfair. In particular, he complained that
(a) the trial court had refused to obtain certain evidence proposed by him;
(b) the domestic courts’ judgments had lacked reasoning;
(c) some members of the appeal panel had not been impartial;
(d) his case had not been decided by a “tribunal established by law”;
(e) the judgments had been based on unlawfully obtained evidence;
(f) his right to be presumed innocent had been infringed;
(g) during the two sets of appeal proceedings, the submissions of the State Attorney’s Office of the Republic of Croatia had not been forwarded to the defence;
(h) he had not been given an opportunity to be present at the sessions of the appeal panels; and
(i) he had been discriminated against in the course of the second‑instance proceedings since, unlike his co-defendants who had been at liberty, he had not been allowed to attend the session of the appeal panel.
19. On the date when the present application was lodged, 2 May 2017, the proceedings before the Constitutional Court were still pending.
20. On 10 October 2019 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded. It established that in his appeals he had failed to raise some of the complaints he had later put forward in his constitutional complaint (see paragraph 18 above). However, it decided not to declare them inadmissible for non-exhaustion of remedies, having regard to the fact that the applicant had been sentenced to thirty years’ imprisonment.
As regards the failure to forward the prosecution’s submission to the applicant in the course of the second-instance proceedings and his absence from the session of the appeal panel (see paragraphs 9-11 above), the Constitutional Court dismissed those complaints as unfounded, attaching importance to the fact that the applicant had been represented by a lawyer at the session, that his sentence had not been increased, and that he had not raised these complaints in his appeal against the second-instance judgment of 16 December 2009.
As regards the same complaints concerning the third-instance proceedings (see paragraphs 14-16 above), the Constitutional Court held that raising a factual issue in an appeal did not in itself imply an obligation for the appellate court to hold a hearing in a defendant’s presence. Lastly, it held that the prosecution’s submission had not constituted a reasoned opinion aimed at influencing the Supreme Court’s decision, as its content had been limited to contesting the arguments put forward in the appeal by the applicant’s lawyer.
21. The decision of the Constitutional Court was served on the applicant’s representative on 29 October 2019.
II. Previous proceedings before the Court (application no. 5155/15)
22. On 19 January 2015 the applicant lodged an application with the Court, complaining, inter alia, under Article 6 § 1 of the Convention about the excessive length of the above-mentioned proceedings before the Constitutional Court (see paragraphs 18 and 19 above). On 11 May 2015 the Government were given notice of the applicant’s complaint concerning the length of the proceedings and the remainder of his application was declared inadmissible.
23. In the course of the proceedings before the Court, the applicant and the Government reached a friendly settlement and signed friendly settlement declarations on 16 June and 19 July 2015 respectively, under which the applicant agreed to waive any further claims against Croatia in respect of the facts giving rise to his application against an undertaking by the Government to pay him the amount of 2,500 euros (EUR) to cover any non‑pecuniary damage as well as costs and expenses. The signed declarations also provided that the payment of that amount would constitute the final resolution of the case.
24. On 13 October 2015 the Court decided to strike application no. 5155/15 out of its list of cases (see Simendić and Others v. Croatia (dec.) [Committee], nos. 46519/12 and 8 others, 13 October 2015).
RELEVANT LEGAL FRAMEWORK
25. The relevant domestic law in force at the material time, concerning the forwarding to the defence of a reasoned opinion by the State Attorney’s Office submitted in the course of appeal proceedings and the presence of a defendant at a session of an appeal panel, is set out in Romić and Others v. Croatia (nos. 22238/13 and 6 others, §§ 65-68, 14 May 2020).
26. Article 411 § 1 (1) of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette no. 110/97, with further amendments) provided that a second-instance judgment could be challenged at third instance only if the court at second instance had sentenced a defendant to long-term imprisonment, or if it had upheld such sentence imposed by the trial court below. Article 411 § 2 provided that the court at third instance would examine an appeal against the second-instance judgment in a session of the appeal panel, in accordance with the provisions applicable to second‑instance proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE LENGTH OF THE PROCEEDINGS
27. The applicant complained that the length of the proceedings before the Constitutional Court had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, the relevant parts of which read as follows:
“In the determination of … any criminal charge against him, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”
A. Period between 25 October 2010 and 19 July 2015
1. Admissibility
(a) The parties’ arguments
28. The Government disputed the admissibility of the applicant’s complaint concerning the length of the proceedings before the Constitutional Court for the period up to 13 October 2015. In particular, they submitted that on that date the Court had rendered a decision in Simendić and Others (cited above) by which it had struck the applicant’s previous application (no. 5155/15) out of its list of cases following a friendly settlement reached between them and the applicant (see paragraphs 22-24 above). Having regard to the fact that the State had fully complied with its payment obligation arising from the friendly settlement, they submitted that this part of the applicant’s complaint should be declared inadmissible.
29. In his observations of 26 November 2018 in reply to those of the Government, the applicant acknowledged that he had reached a friendly settlement with the Government as regards the length of the proceedings before the Constitutional Court and that the State had paid him the agreed amount. However, he asserted that he was still a victim of the violation complained of, given that the proceedings in question had continued even after the friendly settlement and, as at 26 November 2018, were still ongoing (see paragraphs 18-20 above).
(b) The Court’s assessment
30. The Court firstly notes that in his signed declaration the applicant agreed to waive any further claims against Croatia in respect of the facts giving rise to application no. 5155/15 against an undertaking by the Government to pay him the amount of EUR 2,500 to cover any non‑pecuniary damage as well as costs and expenses (see paragraph 23 above). It is not in dispute between the parties that the State has fully complied with its payment obligation (see paragraphs 28 and 29 above). In view of the foregoing, the Court finds that, as regards the period before the conclusion of the friendly settlement on 19 July 2015, the applicant can no longer claim to be a victim of the violation complained of within the meaning of Article 34 of the Convention (see Grimm v. Germany (dec.), no. 38961/07, 8 December 2009). Accordingly, this part of the applicant’s length-of-proceedings complaint is inadmissible for lack of victim status and must be rejected pursuant to Article 34 and Article 35 §§ 3 (a) and 4 of the Convention.
B. Period between 20 July 2015 and 29 October 2019
1. Admissibility
31. The Court notes that this complaint is neither manifestly ill-founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
(a) The parties’ arguments
32. The applicant submitted that the proceedings before the Constitutional Court had been ongoing for more than eight years, which had been excessive. Even if only the period after the conclusion of the friendly settlement was to be taken into consideration, the proceedings had still lasted too long. While it was true that the criminal proceedings in question had been conducted against several defendants on numerous charges, the constitutional complaint had only been lodged by him and with regard to one criminal offence (see paragraphs 13 and 18 above). The Constitutional Court had had the case file at its disposal throughout the entire duration of the proceedings before it, as it had obtained a copy from the criminal courts conducting the proceedings. The fact that he had raised several serious matters in his constitutional complaint could not in itself have justified the length of the proceedings in issue.
33. The Government contended that the duration of the proceedings before the Constitutional Court after the conclusion of the friendly settlement could not be deemed excessive. The criminal proceedings complained of had been complex; they had involved seven defendants charged with a wide range of criminal offences (see paragraph 5 above). In his extensive constitutional complaint (totalling sixty-five pages), the applicant had raised several complaints which had not been limited to the failure to forward the prosecution’s submissions to the defence and his absence from the sessions of the appeal panel (see paragraph 18 above). Moreover, the decision on his constitutional complaint could have had an impact on the outcome of the criminal proceedings against the other defendants (see paragraph 12 above). The Government lastly submitted that over a long period of time the Constitutional Court had not had the case file at its disposal – the case file had remained in the possession of the criminal courts, since a final decision had not yet been rendered in respect of all the defendants.
(b) The Court’s assessment
(i) Period to be taken into consideration
34. The Court has already declared inadmissible the part of the applicant’s length-of-proceedings complaint concerning the period prior to the conclusion of the friendly settlement (see paragraph 30 above). Therefore, the period to be taken into consideration began on 20 July 2015. The proceedings ended on 29 October 2019 when the Constitutional Court’s decision was served on the applicant’s representative. They thus lasted four years, three months and nine days in the period relevant for the Court’s assessment.
(ii) Whether the length of the proceedings was reasonable
35. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II).
36. The Court accepts that the case involved a certain degree of complexity in view of the fact that the applicant had raised different matters in his extensive constitutional complaint (see paragraphs 18 and 33 above). However, the length of the proceedings cannot be explained by this fact alone (see Camasso v. Croatia, no. 15733/02, § 33, 13 January 2005).
37. As to the conduct of the applicant, the Court observes that the Government did not claim that he had contributed to the length of the proceedings. The Court sees no reason to hold otherwise.
38. As to the conduct of the Constitutional Court, in so far as relevant for the Court’s assessment (see paragraph 34 above), the Court observes that the applicant’s case was pending before it for more than four years. During this time, that court did not perform any procedural activity.
39. The Court does not see how the fact that the Constitutional Court’s decision might have influenced the outcome of the criminal proceedings against the other defendants could have justified a delay in its decision in respect of the applicant. Moreover, even assuming that the Constitutional Court did not have the case file at its disposal throughout, this could not have justified the protracted character of the proceedings, as the Constitutional Court could have requested a copy from the criminal courts at any time.
40. In the absence of any specific circumstances which might have given the Constitutional Court a good reason to delay its decision, the Court finds that the length of the proceedings in the instant case was excessive and failed to satisfy the “reasonable time” requirement (see, for example, Díaz Aparicio v. Spain, no. 49468/99, §§ 21-22, 11 October 2001; Pitra v. Croatia, no. 41075/02, §§ 18-25, 16 June 2005; and Šikić v. Croatia, no. 9143/08, §§ 37-38, 15 July 2010).
41. There has accordingly been a breach of Article 6 § 1 of the Convention on this ground.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) of the Convention
42. The applicant complained that he had not had a fair trial. He alleged in particular:
(i) that the principles of equality of arms and adversarial trial had been violated in that the submissions of the State Attorney’s Office had never been forwarded to the defence; and
(ii) that the sessions of the appeal panels had been held in his absence.
43. The applicant relied on Article 6 §§ 1 and 3 (c) of the Convention, the relevant parts of which read as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by an … impartial tribunal established by law. …
3. Everyone charged with a criminal offence has the following minimum rights:
…
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
…”
A. Admissibility
1. The parties’ arguments
44. The Government submitted that the applicant’s complaints were premature because at the time of lodging the present application with the Court his constitutional complaint was still pending before the Constitutional Court (see paragraph 19 above).
45. They further contended that the applicant had not exhausted the domestic remedies with regard to his complaints concerning the failure of the second-instance court to forward to him the submission of the State Attorney’s Office and his absence from the session of the appeal panel, because he had not raised those issues in his appeal against the second‑instance judgment (see paragraph 13 above).
46. The applicant submitted that a constitutional complaint had not been an effective remedy in his case as the proceedings before the Constitutional Court had been ongoing for eight years.
47. As to the second-instance court’s failure to forward to him the prosecution’s submission and his absence from the session of the appeal panel, the applicant contended that he could not have raised those complaints with success in his appeal against the second-instance judgment because under the domestic law in force at the material time the appeal courts were not obliged to forward the opinion of the State Attorney’s Office to the defence, and the standard practice of the appeal courts at the time was not to invite to the session of the appeal panel a defendant who was in pre-trial detention (see paragraph 25 above).
2. The Court’s assessment
(a) Whether the application was premature
48. The Court observes that at the time when the applicant lodged the present application, the proceedings before the Constitutional Court had been ongoing for more than six years (see paragraphs 18 and 19 above). In total, they lasted almost nine years. The Court has already found a violation of Article 6 § 1 of the Convention in the present case on account of the excessive length of those proceedings (see paragraphs 35-41 above). In view of the delays that had already been endured by the applicant at the time of submitting his application, the Court is of the view that he cannot be reproached from the perspective of Article 35 § 1 of the Convention for not awaiting the outcome of the proceedings before the Constitutional Court (see Furman v. Slovenia and Austria, no. 16608/09, § 96, 5 February 2015, and, mutatis mutandis, Longin v. Croatia, no. 49268/10, § 41, 6 November 2012).
49. In any event, the Court has previously accepted that, while the requirement for an applicant to exhaust domestic remedies is normally determined with reference to the date on which an application is lodged with the Court, the last stage of a particular remedy may be reached after the application has been lodged but before its admissibility has been determined (see Stanka Mirković and Others v. Montenegro, nos. 33781/15 and 3 others, § 48, 7 March 2017; Azzolina and Others v. Italy, nos. 28923/09 and 67599/10, § 105, 26 October 2017; and Şahin Alpay v. Turkey, no. 16538/17, § 86, 20 March 2018).
50. In the present case, the Constitutional Court decided on the applicant’s constitutional complaint (see paragraph 20 above) on 10 October 2019.
51. The Government’s objection must therefore be dismissed.
(b) Complaints concerning the second-instance proceedings
52. In several cases against Croatia the Court has previously found that applicants had properly exhausted domestic remedies by raising the same complaints as those raised before the Court throughout the domestic proceedings, and that that was the normal use of the domestic remedies, as required by Article 35 § 1 of the Convention (see Tarbuk v. Croatia, no. 31360/10, § 32, 11 December 2012; Zrilić v. Croatia, no. 46726/11, §§ 46-48, 3 October 2013; Horvatić v. Croatia, no. 36044/09, § 70, 17 October 2013; and Marić v. Croatia, no. 50132/12, § 53, 12 June 2014).
53. The Court notes that in his appeal lodged against the second-instance judgment the applicant did not complain about a failure to forward the prosecution’s submission to the defence in the course of the second-instance proceedings or his absence from the session of the relevant appeal panel (see paragraph 13 above).
54. However, the Constitutional Court, even though it acknowledged that the applicant had failed to raise these two complaints in the appeal against the second-instance judgment, did not declare them inadmissible, but rather examined them on the merits and dismissed them as unfounded (see paragraph 20 above and contrast Ringwald v. Croatia (dec.) [Committee], nos. 14590/15 and 25405/15, § 59, 22 January 2019).
55. In these circumstances, having regard to the fact that the Constitutional Court examined on the merits the applicant’s particular complaints, the Court considers that they cannot be dismissed for failure to exhaust domestic remedies (see, mutatis mutandis, Ulemek v. Croatia, no. 21613/16, § 118, 31 October 2019).
56. Accordingly, the Government’s objection of non-exhaustion of domestic remedies concerning the second-instance proceedings must be dismissed.
(c) Complaints concerning the third-instance proceedings
57. The Court notes that these complaints are neither manifestly ill‑founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
(i) Complaints concerning the failure to forward the submissions of the State Attorney’s Office to the defence
(1) The parties’ arguments
58. The applicant contended that the submissions of the State Attorney’s Office of the Republic of Croatia had not been forwarded to the defence in the course of the second-instance and third-instance proceedings. He also stated that the submissions in question had been aimed at influencing the Supreme Court’s decisions.
59. The Government first argued that the defence had been aware of the existence of the prosecution’s submissions because the applicant’s lawyer had learned of their existence at the sessions of the appeal panels which she had attended (see paragraphs 11 and 16 above). She could therefore have asked to examine them and comment on them if she had considered it necessary. She could also have asked for the submissions to be read out during the sessions, or sought an adjournment in order to gain more time to examine them. Further, she could have objected to the fact that the submissions had not previously been forwarded to the defence. However, she had made no such interventions. Moreover, she had not raised any objections as to how the sessions had been conducted or to the content of their records.
60. The Government further submitted that the submissions of the State Attorney’s Office had contained only general statements, and that they had not been substantiated by any analysis of either factual or legal issues. They could not have influenced the Supreme Court’s decisions in any manner. There had therefore been no reason to communicate the submissions in question to the defence.
(2) The Court’s assessment
61. The Court notes that it has repeatedly found violations of Article 6 § 1 of the Convention on the grounds that a submission of the State Attorney’s Office was not forwarded to the defence (see Zahirović v. Croatia, no. 58590/11, §§ 42-50, 25 April 2013; Lonić v. Croatia, no. 8067/12, §§ 83-86, 4 December 2014; Kliba v. Croatia [Committee], no. 30375/16, §§ 22-28, 18 April 2019; Bosak and Others v. Croatia, nos. 40429/14 and 3 others, §§ 91-101, 6 June 2019; and, most recently, Romić and Others v. Croatia, nos. 22238/13 and 6 others, §§ 91-95, 14 May 2020).
62. The amendments made to the relevant domestic law have removed the origin of the violations found in those cases (see paragraph 25 above). However, in the proceedings complained of by the applicant, the previous legislation and practice were applicable (see paragraphs 9 and 14 above and compare Romić and Others, cited above, §§ 93‑94).
63. Referring to the Government’s first argument (see paragraph 59 above), the Court notes that in Kliba (cited above, § 26) and Bosak and Others (cited above, § 100) it held that to require the defence to be present at the session of the appeal panel in order to be informed that observations had been filed by the prosecution amounted to imposing a disproportionate burden on the defence and did not necessarily guarantee a real opportunity to comment on those observations. In other words, the domestic law had not guaranteed an unconditional right of the defence to have knowledge of, and to comment on, the prosecution’s submission in the appeal proceedings.
64. As to the argument that the prosecution’s submissions contained only general statements, the Court dismissed a similar objection made by the Government in Kliba (cited above, § 24; contrast Šimundić v. Croatia (dec.), no. 22388/16, §§ 20-22,26 March 2019).
65. Therefore, having regard to its case-law cited in paragraph 61 above, the Court finds that there has been a violation of Article 6 § 1 of the Convention on account of the failure to forward the submissions of the State Attorney’s Office to the defence in the course of the second-instance and third-instance proceedings.
(ii) Complaints concerning the applicant’s absence from the sessions of the appeal panels
(1) The parties’ arguments
66. The applicant submitted that he should have been allowed to attend the sessions of the Supreme Court’s panels because the panels had been called to examine questions both of fact and of law and to make a full assessment of his guilt or innocence.
67. The Government submitted that the applicant’s absence from those sessions had not affected the fairness of the criminal proceedings against him because his case had been examined at as many as three instances, including by two formations of the Supreme Court as the highest court in the country. Throughout the proceedings, his defence rights had been fully secured and a detailed examination of evidence had been carried out. His lawyer, who had attended the sessions before the Supreme Court, had not objected on those occasions that this court had failed to ensure the applicant’s presence. Lastly, the applicant had failed to substantiate in his appeal against the second-instance judgment why his presence at the relevant session would have been expedient, considering in particular that his lawyer had been invited to attend it.
(2) The Court’s assessment
68. The Court notes that it has repeatedly found violations of Article 6 §§ 1 and 3 (c) of the Convention on account of applicants not being allowed to be present at sessions of the appeal panel in the criminal proceedings against them (see Zahirović v. Croatia, no. 58590/11, §§ 54-64, 25 April 2013; Lonić v. Croatia, no. 8067/12, §§ 90-102, 4 December 2014; Arps v. Croatia, no. 23444/12, §§ 24-29, 25 October 2016; Bosak and Others, cited above, §§ 105-09; and, most recently, Romić and Others, cited above, §§ 99-103).
69. The Court notes that the amendments made to the relevant domestic law have removed the origin of the violations found in those cases (see paragraph 25 above). However, in the proceedings complained of by the applicant, the previous legislation and practice were applicable (see paragraphs 10, 11, 15 and 16 above, and compare Romić and Others, cited above, § 102).
70. The Court notes that in his appeals against the first-instance and second-instance judgments the applicant contested his conviction and sentence on both factual and legal grounds (see paragraphs 8 and 13 above). The Supreme Court was therefore called upon to make a full assessment of his guilt or innocence in respect of the charges against him in the light not only of the arguments he had put forward before the courts below, but also of his arguments concerning the alleged failures of those courts to establish all the relevant facts and to apply the applicable substantive and procedural rules correctly (see Lonić, cited above, § 99, and compare Abdulgadirov v. Azerbaijan, no. 24510/06, § 42, 20 June 2013, and Kozlitin v. Russia, no. 17092/04, § 63, 14 November 2013; and contrast Fejde v. Sweden, 29 October 1991, § 33, Series A no. 212‑C, and Hermi v. Italy [GC], no. 18114/02, § 85, ECHR 2006‑XII). However, contrary to the requirements of the above case-law, the Supreme Court decided that the applicant’s presence was not expedient (see paragraphs 11 and 16 above).
71. The Court notes that under the domestic law in force at the time, if a defendant was in detention the president of the appeal panel would ensure the defendant’s presence only where he or she considered it to be expedient (see paragraph 25 above). In the instant case, even though he had asked to be present at the sessions of the appeal panels in the second-instance and third-instance proceedings, the Supreme Court expressly stated prior to the sessions that the presence of the applicant, who was in pre-trial detention and who had a lawyer, would not be ensured, and that there would be no order for him to be brought to court (see paragraphs 10 and 15 above). In the absence of any case-law indicating that an objection by the lawyer at the sessions of the appeal panel would have remedied the situation, the fact that the applicant’s lawyer did not object to his absence on those occasions cannot be held against the applicant.
72. In view of the above considerations and having regard to the fact that the Government failed to put forward any argument which would lead the Court to depart from its case-law cited in paragraph 68 above, the Court finds that there has been a violation of Article6 §§ 1 and 3 (c) of the Convention on account of the applicant’s absence from the sessions of the appeal panels held in the second-instance and third-instance proceedings before the Supreme Court.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
73. Article 41 of the Convention provides:
“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
74. The applicant claimed 2,000 euros (EUR) plus value-added tax (VAT) in respect of non-pecuniary damage on account of the excessive length of the proceedings before the Constitutional Court. He also claimed EUR 8,000 plus VAT in respect of non-pecuniary damage on account of the failure to forward the prosecution’s submission to the defence and his absence from the sessions of the appeal panel.
75. The Government contested those claims, deeming them excessive, unfounded and unsubstantiated.
76. The Court finds that the applicant must have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards him:
(i) EUR 2,000 in respect of non-pecuniary damage for the violation of Article 6 § 1 of the Conventionon account of the excessive length of the proceedings before the Constitutional Court, plus any tax that may be chargeable; and
(ii) EUR 1,500 in respect of non-pecuniary damage for violations of Article 6 §§ 1 and 3 (c) of the Conventionon account of the failure to forward the prosecution’s submissions to the defence in the course of the second-instance and third-instance proceedings and the applicant’s absence from the session of the appeal panel in both sets of proceedings, plus any tax that may be chargeable.
B. Costs and expenses
77. The applicant also claimed EUR 6,430 for the costs and expenses incurred before the domestic courts and before the Court.
78. The Governmentsubmitted that the claim for expenses had been excessive and lodged without any supporting documents, and thus should be rejected.
79. As to the costs and expenses incurred before the domestic courts, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 845, plus any tax that may be chargeable to him.
80. As to the costs incurred before the Court, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 2,000, plus any tax that may be chargeable to him.
C. Default interest
81. 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.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint concerning the length of the proceedings before the Constitutional Court up to 19 July 2015 inadmissible and the remainder of the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings before the Constitutional Court;
3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the failure to forward the submissions of the State Attorney’s Office to the defence in the course of the second-instance and third-instance proceedings;
4. Holdsthat there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the applicant’s absence from the sessions of the appeal panels in the second-instance and third-instance proceedings;
5. Holds,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Croatian kunasat the rate applicable at the date of settlement:
(i) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,845 (two thousand eight hundred and forty-five 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;
6. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 18 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Attila Teplán Krzysztof Wojtyczek
Acting Deputy Registrar President
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