The present case concerns the domestic courts’ refusal to reopen criminal proceedings conducted in the applicant’s absence, in which he was found guilty of war crimes and sentenced to twenty years’ imprisonment.
CASE OF POZDER v. CROATIA
(Application no. 56510/15)
13 January 2022
This judgment is final but it may be subject to editorial revision.
In the case of Pozder v. Croatia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Krzysztof Wojtyczek, President,
Ioannis Ktistakis, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 56510/15) 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 Marinko Pozder (“the applicant”), on 10 November 2015;
the decision to give notice to the Croatian Government (“the Government”) of the complaint concerning the applicant’s inability to obtain a rehearing after his conviction in absentia and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 6 July 2021 and 7 December 2021,
Delivers the following judgment, which was adopted on the latter date:
1. The present case concerns the domestic courts’ refusal to reopen criminal proceedings conducted in the applicant’s absence, in which he was found guilty of war crimes and sentenced to twenty years’ imprisonment.
2. The applicant was born in 1960 and lives in Kašić. He was represented by Ms S. Čanković, 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. Background of the case
5. On 18 November 1991, during the armed conflict between the Serb paramilitary forces and the Yugoslav People’s Army on the one side and the Croatian armed forces on the other, a number of civilians were killed in the town of Škabrnja.
6. In 1992 an investigation was opened in respect of certain individuals on reasonable suspicion that they had participated in the crimes in Škabrnja.
7. On 15 July 1993 the applicant, who was a member of the Serb paramilitary forces, was captured by the Croatian authorities and placed in custody. On 4 October 1993 the Zadar District State Attorney’s Office asked the investigating judge to extend the scope of the investigation against the applicant with regard to the events in Škabrnja, which request was granted.
8. On 7 October 1993 the applicant was questioned by the investigating judge of the Zadar District Court. He denied having participated in war crimes against civilians in Škabrnja. On the same day, the investigating judge ordered the detention of the applicant.
9. On 7 October and 9 November 1993 the investigating judge heard the witness J.P., who was questioned in the presence of the applicant and his legal-aid lawyer. She stated that she had seen the applicant in one of the groups formed by the Serb paramilitary forces, at the time of the killings of civilians in Škabrnja. She maintained that she had also recognised him when she had seen him afterwards in a detention facility following his capture by the Croatian authorities.
10. On 16 December 1993 the investigating judge terminated the applicant’s detention and ordered his release, following a notice of the Government Commission on Detainees and Missing Persons of the Republic of Croatia for the purposes of an official prisoner exchange in line with an agreement with the International Red Cross. After his release on 17 December 1993, the applicant could not be traced by the Croatian authorities.
11. On 27 November 1995 the Zadar County State Attorney’s Office indicted the applicant on charges of war crimes against the civilian population with regard to the events in Škabrnja.
12. On 28 November 1995 the Zadar County Court ordered that the applicant be tried in absentia as he was not available to the Croatian authorities. He was tried together with seventeen others. During the proceedings the applicant was represented by a legal aid lawyer.
13. On 11 December 1995 the applicant was convicted as charged and sentenced to twenty years’ imprisonment. The remaining seventeen co‑accused were also convicted as charged.
14. The applicant’s legal-aid lawyer did not lodge an appeal against the Zadar County Court’s judgment. On 16 June 1998 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed an appeal by the other co‑accused as ill-founded and upheld the Zadar County Court’s judgment. That judgment was further upheld by the Supreme Court, acting as a third‑level appeal court, on 7 November 2001.
II. The applicant’s request for reopening of the proceedings
15. In submissions of 6 June and 2 July 2012, the applicant requested that the Zadar County Court reopen the proceedings on the grounds that he had never been served with the indictment. In his request the applicant contended that in the retrial of one of his co-accused, new facts had been established which suggested his innocence as regards the crime of which he had been convicted. He also referred to findings of the domestic courts in various other proceedings against different individuals, alleging that those findings would support his acquittal.
16. On 26 June 2013 a three-judge bench of the Zadar County Court dismissed the applicant’s request, finding that there were no grounds for allowing a retrial. It stressed that the applicant’s arguments did not represent new facts or evidence which, alone and in conjunction with the previous evidence, could have led to his acquittal. It also held that since the applicant was not present in Croatia, the proceedings could not be reopened, as there was no possibility of holding a trial in his presence.
17. The applicant then lodged an appeal with the Supreme Court, arguing that he had not had a fair hearing in the determination of the criminal charges against him, and that the newly disclosed facts could have led to his acquittal.
18. On 21 January 2015 the Supreme Court dismissed the applicant’s appeal as ill-founded and upheld the decision of the Zadar County Court. That decision was served on the applicant’s representative on 6 February 2015.
19. The applicant then lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that he had not had a fair hearing in the determination of the criminal charges against him, and that he had not been able to obtain a retrial.
20. On 28 April 2015 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that it concerned proceedings for the reopening of the criminal proceedings and not a criminal charge against the applicant. Its decision was served on the applicant’s representative on 12 May 2015.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
21. The relevant domestic law, practice and legal theory, as well as the relevant international materials, are set out in Sanader v. Croatia (no. 66408/12, §§ 36-53, 12 February 2015).
22. In the context of the procedure for the execution of the Court’s judgment in Sanader (cited above), legislative amendments were introduced in respect of Article 497 § 2 of the Code of Criminal Procedure and came into force on 27 July 2017. Pursuant to those amendments, a request for a retrial can be lodged by a person convicted in absentia within one year from the moment the person became aware of the conviction. Such a request must be granted provided that the convicted person indicates an address, even if abroad, where the court summons could be served, and gives assurances that his or her case will be pleaded. Once such assurances have been provided, enforcement of the sentence is postponed and the arrest warrant withdrawn. Accordingly, a person convicted in absentia is no longer required to provide an address in Croatia or to put his or her liberty at risk in order to be able to request a retrial (see Sanader, cited above, § 87).
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 OF THE CONVENTION
23. The applicant complained that he had not been able to obtain a retrial after his conviction in absentia. He relied on Article 6 §§ 1 and 3 (c) of the Convention, which reads as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …
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;
24. The Government submitted that the final decision in the applicant’s case had been the second-instance judgment of the Supreme Court of 21 January 2015 (see paragraph 18 above) and not the Constitutional Court’s decision of 28 April 2015 (see paragraph 20 above). The applicant, who was represented by a lawyer, should have known that, according to the well‑established practice of the Constitutional Court, a constitutional complaint was not a remedy to be used in respect of requests for reopening of criminal proceedings. The Government thus contended that, by taking the Constitutional Court’s decision as the final domestic decision and by not lodging his application with the Court until 10 November 2015, the applicant had failed to comply with the six-month time-limit.
25. The applicant contested that argument.
26. The Court has already had the opportunity to address this issue in a number of cases against Croatia, and each time rejected a similar inadmissibility objection (see, for example, Kardoš v. Croatia, no. 25782/11, §§ 31-39, 26 April 2016; Pavlović and Others v. Croatia, no. 13274/11, §§ 30-38, 2 April 2015; and Šimecki v. Croatia, no. 15253/10, §§ 28-33, 30 April 2014).
27. The Court can only add that a constitutional complaint is clearly a remedy capable of addressing the relevant Convention issue and redressing the violation complained of. To hold that such a remedy did not need to be pursued simply because, at the time, the Constitutional Court’s practice suggested that the decision being contested was not amenable to constitutional review would disregard the fact that such practice might evolve (see Pavlović and Others, cited above, § 36). More importantly, it would remove any incentive for such evolution, as applicants would systematically address their complaints to the Court without giving the Constitutional Court a chance to change its practice, contrary to the principle of subsidiarity (see Vrtar v. Croatia, no. 39380/13, § 76, 7 January 2016). The Government’s objection must therefore be dismissed.
28. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
29. The applicant submitted that in his requests for the reopening of criminal proceedings, he had presented new facts and evidence which suggested that he should be acquitted or resentenced under a more lenient provision of the law. In particular, in the retrials of two of his co-accused, new facts had come to light which suggested that the crimes in Škabrnja had not been committed by all the defendants but rather only by some individuals or groups. Out of all the witnesses examined during the criminal proceedings against him, only the witness J.P. had mentioned that she had seen the applicant in Škabrnja on the day in question; however, J.P.’s statement had not implicated him in any killing or ill-treatment of civilians. Furthermore, as regards the part of J.P.’s testimony stating that she had recognised and identified him as a person who had participated in the impugned events, the applicant pointed out that such evidence had been unlawfully obtained, as the identification had not been carried out in accordance with the provisions of the Code of Criminal Procedure. Moreover, in the retrial of the applicant’s co-accused Z.B., that witness had not mentioned that she had seen the applicant in Škabrnja during the event in question. Therefore, there was no evidence in support of his guilt.
30. The applicant further argued that his legal-aid lawyer had never challenged the lawfulness of J.P.’s testimony and had never pursued any remedies on the applicant’s behalf in the course of the criminal proceedings against him. The applicant also emphasised that he had been released from custody in 1993, after which he had assumed that he would be acquitted. Finally, the applicant submitted that he should have been granted a retrial in which he could defend himself by presenting those new facts while being represented by a lawyer of his own choosing.
31. The Government argued that the applicant had been aware that the investigating judge had opened an investigation against him and that he had been duly informed of the charges against him and his defence rights. He had been able to actively participate in the initial stages of the investigation, in particular to present his defence, question witnesses (notably the witness J.P., who had testified against him) and challenge the evidence against him. As regards the part of the proceedings conducted in the applicant’s absence, in the Government’s view those proceedings had been fair: the applicant had been effectively represented by a legal-aid lawyer, the trial court had properly assessed the facts and evidence presented before it, and the domestic courts had provided sufficient reasons for their decisions.
32. Furthermore, regardless of the fact that the applicant had not formally been served with the indictment, the Government deemed that, contrary to the applicant in Sanader (cited above, § 76), he had been sufficiently aware of the charges against him and thus had decided to waive his right to be present at the trial. Following his departure for Serbia, the applicant had clearly shown that he had no intention of participating in those proceedings: he had never tried to contact the competent court or his legal aid lawyer to obtain information on the progress of the case.
33. Lastly, the Government argued that the two procedural means provided for in the Code of Criminal Procedure for reopening proceedings conducted in absentia offered the applicant reasonable prospects of having the charges against him re-examined. The applicant did not fulfil the conditions for automatic reopening under the special provision of Article 497 § 2 of the Code of Criminal Procedure, because he had not based his request on that provision and because he had not been available to the Croatian judicial authorities. As regards the possibility of a retrial under the general provision of Article 501 § 1 (3) of the Code of Criminal Procedure, which provided that such a possibility existed only when there were new facts or evidence which could lead to an acquittal, the Government pointed out that the domestic courts had sufficiently examined the evidence proposed by the applicant and found that it did not meet that requirement.
2. The Court’s assessment
34. General principles concerning trials in absentia are summarised in Sanader (cited above, §§ 67-74).
35. In that leading case, after a detailed examination of the procedural means provided for in the Croatian Code of Criminal Procedure for reopening proceedings conducted in absentia, the Court found a violation of Article 6 § 1 of the Convention on account of the applicant’s inability to obtain a rehearing of his case in full respect of his defence rights.
36. Turning to the present case, in view of principles set out in Sanader (cited above, §§ 75-95) and the parties’ submissions, the Court must examine whether the applicant had waived his right to be present at the trial or had evaded justice, and whether the domestic law offered him, with sufficient certainty, the possibility of obtaining a fresh determination of the charges against him in his presence and with due regard to his defence rights.
37. In this connection, the Court observes that the applicant had personally participated in the initial stages of the investigation against him, before he was released from detention for the purposes of a prisoner exchange (see paragraphs 7-10 above). Accordingly, he must have had some knowledge of the proceedings against him. However, after his departure from Croatia, there is no evidence that the applicant was ever notified of the ongoing proceedings against him, nor was he ever served with the indictment or summonses for trial hearings, or informed in any way by the Croatian authorities that the proceedings against him had continued or that he should inform them of a new address where the court summons could be served on him.
38. What is more, the Court notes that the applicant left Croatia as part of a negotiated prisoner exchange (see paragraph 10 above). However, there is no evidence that the domestic authorities ever tried to ‘establish his whereabouts for instance through the official channels facilitating that exchange, to the extent they may be relevant, such as the Government Commission on Detainees and Missing Persons or the International Red Cross’.
39. In any event, given the conditions of the escalating war in Croatia at the material time and the fact that the applicant lived on territory which was outside the control of the domestic authorities, it was impossible for them to notify him of the indictment or to secure his presence at the trial. It was also highly improbable that he could have had knowledge of the continuation of the criminal proceedings against him (compare Sanader, cited above, § 76).
40. The right to be present at the trial is one of the cornerstone rights of an accused and that a person charged with a criminal offence must not be left with the burden of proving that he was not seeking to evade justice or that his absence was due to force majeure (see Colozza v. Italy, 12 February 1985, §§ 27 and 30, Series A no. 89). Hence, in the light of the above-mentioned findings, the Court is unable to conclude that the applicant sought to evade trial in the instant case or unequivocally waived his right to appear in court (compare Sejdovic, §§ 98-101; Sanader, §§ 76-77, both cited above; and M.T.B. v. Turkey, no. 47081/06, §§ 50-54, 12 June 2018; and contrast Medenica v. Switzerland, no. 20491/92, §§ 56-58, ECHR 2001‑VI, and Kislov v. Russia, no. 3598/10, §§ 118-19, 9 July 2019).
41. It therefore remains to be determined whether the domestic legislation afforded the applicant with sufficient certainty the opportunity of appearing at a new trial.
42. In that regard the Court observes that the applicant did not avail himself of the remedy provided for in Article 497 § 2 of the Code of Criminal Procedure (see paragraph 33 above). In any event, this remedy would not have been capable of redressing the violation in the instant case, given that, prior to the 2017 legislative amendments (see paragraphs 21 and 22 above), the domestic courts created a disproportionate obstacle to the use of the remedy in question. As the Court already concluded in Sanader (cited above), firstly, it would have been likely to lead to the applicant’s being taken into custody on the basis of his conviction in absentia and, secondly, it was unreasonable from a procedural point of view in that the applicant’s conviction as such would not have been affected by the domestic courts’ order for a retrial (see Sanader, cited above, §§ 80-91).
43. Consequently, considering that in the present case the applicant was not available to the Croatian authorities and was outside their jurisdiction (see paragraphs 16 and 34 above), even if he had sought the automatic reopening of the proceedings under the special provision of Article 497 § 2 of the Code of Criminal Procedure, his request would have been denied in all likelihood (see Sanader, cited above, §§ 42-46 and 82).
44. As to the remedy under Article 501 § 1 (3) of the Code of Criminal Procedure, the Court has already established in Sanader (cited above, §§ 92-94) that it did not guarantee effectively and with sufficient certainty that the applicant would have the opportunity of a retrial. Using this remedy, the applicant was essentially required, simply in order to obtain a retrial, to challenge the factual findings of the final judgment by which he was convicted – and this by submitting new facts and evidence of such strength and significance that they could at the outset convince the court that he should be acquitted. Such a demand appears disproportionate to the essential requirement of Article 6 that a defendant should be given an opportunity to appear at the trial and have a hearing where he could challenge the evidence against him, an opportunity which the applicant never had (see paragraphs 14 and 31 above).
45. In the light of the foregoing, the Court considers that the applicant was not afforded with sufficient certainty the opportunity of obtaining a fresh determination of the merits of the charges against him by a court in full accordance with his defence rights (see Sejdovic, §§ 101 and 105, and Sanader, § 95, both cited above).
46. Consequently, there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
47. 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.”
48. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.
49. The Government submitted that the applicant’s claim was excessive, unfounded and unsubstantiated.
50. Having regard to all the circumstances of the present case, the Court accepts that the applicant 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 the applicant EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
51. The applicant claimed EUR 2,000 in respect of costs and expenses incurred before the domestic courts and the Court.
52. The Government contested that claim.
53. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum claimed in full.
C. Default interest
54. 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 application admissible;
2. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Croatian kunas (HRK) at the rate applicable at the date of settlement:
(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand 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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 13 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv Tigerstedt Krzysztof Wojtyczek
Deputy Registrar President