\nCASE OF \u0160APONJA AND KARAULA v. CROATIA<\/strong>
\n(Applications nos. 72962\/16 and 28751\/17)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n18 March 2021<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of \u0160aponja and Karaula v. Croatia,<\/strong><\/p>\n The European Court of Human Rights (First Section), sitting as a Committee composed of: Having regard to:<\/p>\n the applications (nos.\u00a072962\/16 and 28751\/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 (\u201cthe Convention\u201d) by two Croatian nationals, Mr Slobodan \u0160aponja (\u201cthe first applicant\u201d) and Mr Mate Karaula (\u201cthe second applicant\u201d), on 24 November 2016 and 7\u00a0April 2017 respectively;<\/p>\n the decisions to give notice to the Croatian Government (\u201cthe Government\u201d) of the complaints under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention and to declare inadmissible the remainder of the applications;<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 16 February 2021,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n 1. The case concerns the applicants\u2019 complaints, under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention, that in the criminal proceedings conducted against them they had not been given an opportunity to attend the sessions of the appeal panel.<\/p>\n THE FACTS<\/strong><\/p>\n 2. The first applicant was born in 1980 and lives in Rijeka. The second applicant was born in 1970 and lives in Pakrac. The first applicant was represented by Mr K. Dekleva, a lawyer practising in Rijeka, and the second applicant was represented by Mr\u00a0H.\u00a0\u010ca\u010di\u0107, a lawyer practising in Bjelovar.<\/p>\n 3. The Government were represented by their Agent, Ms \u0160. Sta\u017enik.<\/p>\n 4. The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n A. \u0160aponja v. Croatia, application no. 72962\/16<\/strong><\/p>\n 5. On 26 June 2008 the Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: the \u201cOSCOC\u201d) indicted the first applicant and fifteen other persons in the Rijeka County Court (\u017dupanijski sud u Rijeci) on charges of drug trafficking.<\/p>\n 6. On 11 June 2010 the Rijeka County Court found the first applicant guilty as charged and sentenced him to four years\u2019 imprisonment.<\/p>\n 7. On 17 November 2010 the first applicant lodged an appeal against the Rijeka County Court\u2019s judgment with the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the factual and legal grounds for his conviction and sentence. He also asked that he and his lawyer be invited to attend the session of the appeal panel.<\/p>\n 8. The OSCOC also appealed against the first-instance judgment seeking, inter alia, a more severe sentence for the first applicant.<\/p>\n 9. During the appeal proceedings the case file was forwarded to the State\u00a0Attorney\u2019s Office of the Republic of Croatia (Dr\u017eavno odvjetni\u0161tvo Republike Hrvatske), which submitted a reasoned opinion to the Rijeka County Court, calling for the dismissal of the first applicant\u2019s appeal and endorsing the OSCOC\u2019s proposal to increase his sentence.<\/p>\n 10. On 7 April 2011 the Supreme Court held a session in the presence of the first applicant\u2019s and the other defendants\u2019 lawyers. The Supreme Court did not deem it expedient to have the first applicant, who was represented by a lawyer, brought from pre-trial detention. The Deputy State Attorney of the Republic of Croatia (Zamjenik Glavnog dr\u017eavnog odvjetnika Republike Hrvatske) was invited to the session but he did not attend it.<\/p>\n 11. On 8 April 2011 the Supreme Court adopted a judgment in which it upheld the first applicant\u2019s conviction and increased his sentence to five years and six months\u2019 imprisonment. It held that there had not been any significant mitigating factors which would have justified imposing a sentence below the statutory minimum on him (see paragraph 23 below).<\/p>\n 12. On 3 August 2011 the first applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) arguing, inter alia, that he had not been given an opportunity to be present at the session of the appeal panel.<\/p>\n 13. On 3 June 2016 the Constitutional Court dismissed the first applicant\u2019s constitutional complaint as unfounded. It held that the first applicant\u2019s absence from the session of the appeal panel had not affected the fairness of the criminal proceedings against him given that he had been represented by a lawyer at the session, whereas the prosecution did not attend it. It also took into account the fact that the first applicant\u2019s sentence had not been increased on the basis of re-examination of facts, but because the second-instance court found that the requirements for granting the mitigation of sentence had not been met.<\/p>\n 14. The decision of the Constitutional Court was served on the applicant\u2019s representative on 27 June 2016.<\/p>\n B. Karaula v. Croatia, application no. 28751\/17<\/strong><\/p>\n 15. On 25 January 2012 two individuals brought criminal charges for insult and threat against the second applicant before the Daruvar Municipal Court (Op\u0107inski sud u Daruvaru).<\/p>\n 16. After two remittals, on 25 November 2015 the Bjelovar Municipal Court (Op\u0107inski sud u Bjelovaru) found the second applicant guilty and sentenced him to seven months\u2019 imprisonment suspended for one year.<\/p>\n 17. On 23 December 2015 the second applicant lodged an appeal with the Bjelovar County Court (\u017dupanijski sud u Bjelovaru), challenging the factual and legal grounds for his conviction and sentence. He also asked that he and his lawyer be invited to the session of the appeal panel.<\/p>\n 18. The session of the appeal panel was held on 30 June 2016 in the absence of the second applicant and his lawyer. The Bjelovar County Court held that it had not been obliged to invite them since the case concerned offences punishable by a fine or up to five years\u2019 imprisonment and the second applicant was given a suspended sentence (see paragraph 20 below). On the same day the Bjelovar County Court partially amended the first-instance judgment, finding the second applicant guilty on two counts of insult underthe new, more lenient Criminal Code, and fined him 18,640 Croatian kunas (approximately 2,490 euros).<\/p>\n 19. On 12 August 2016 the second applicant lodged a constitutional complaint with the Constitutional Court complaining, inter alia, that he had not been given an opportunity to be present at the session of the appeal panel.<\/p>\n 20. On 23 November 2016 the Constitutional Court declared the second applicant\u2019s constitutional complaint inadmissible as manifestly ill-founded.<\/p>\n 21. The decision of the Constitutional Court was served on the second applicant\u2019s representative on 19 December 2016.<\/p>\n RELEVANT LEGAL FRAMEWORK<\/strong><\/p>\n 22. The relevant domestic law in force at the material time, concerning the presence of an applicant at a session of an appeal panel, is set out in the case of Romi\u0107 and Others v. Croatia (nos. 22238\/13 and 6 others, \u00a7\u00a7 65-68, 14\u00a0May 2020, with further references therein).<\/p>\n 23. The relevant parts of the Criminal Code (Kazneni zakon, Official Gazette no 110\/97, with further amendments) read as follows:<\/p>\n THREAT<\/strong><\/p>\n Article 129<\/p>\n \u201c(1) Whoever threatens another person with harm in order to intimidate or disturb that person shall be fined up to one hundred and fifty monthly wages or sentenced to imprisonment for a term not exceeding six months.<\/p>\n …<\/p>\n (4) Criminal proceedings for the criminal offences defined in paragraphs 1 and 2 of this Article shall be instituted upon [a private] application.\u201d<\/p>\n ABUSE OF NARCOTIC DRUGS \u201c …<\/p>\n (2) Whoever, without authorisation, manufactures, processes, sells or offers for sale or buys for the purpose of reselling, keeps, distributes or brokers the sale and purchase of, or in some other way and without authorisation puts into circulation, substances or preparations which are by regulation declared to be narcotic drugs, shall be liable to\u00a0a minimum sentence of three years\u2019\u00a0imprisonment.\u201d<\/p>\n (3) If\u00a0the\u00a0criminal offence under paragraphs 1 and\u00a02 of this Article\u00a0was committed by\u00a0a group or a criminal organisation,\u00a0the perpetrator\u00a0shall be liable to a\u00a0minimum sentence of\u00a0five\u00a0years\u2019\u00a0imprisonment, or\u00a0life\u00a0imprisonment.\u201d<\/p>\n INSULT \u201c(1) Whoever insults another person shall be fined up to one hundred monthly wages or sentenced to imprisonment for a term not exceeding three months.\u201d<\/p>\n Article 204<\/p>\n \u201c(1) Criminal proceedings for criminal offences against honour and reputation defined in Articles 199 to 202 of this Act shall be instituted upon [a private] application.\u201d<\/p>\n THE LAW<\/strong><\/p>\n I. JOINDER OF THE APPLICATIONS<\/p>\n 24. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n II. ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 and 3 (c) OF THE CONVENTION<\/p>\n 25. The applicants complained that they had not had a fair trial. They alleged in particular that the respective sessions of the appeal panel had been held in their absence.<\/p>\n 26. The applicants relied on Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention, which, in so far as relevant, reads as follows:<\/p>\n \u201c1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by an … impartial tribunal established by law. …<\/p>\n 3. Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (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; …\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 27. The Court notes that these complaints are neither manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) and 4 of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 1. The parties\u2019 arguments<\/em><\/p>\n 28. The first applicant submitted that he should have been allowed to attend the Supreme Court session in order to be able to clarify the relevant facts and to comment on the circumstances which might have affected the severity of his sentence. Further, he should have been able to supplement his grounds for appeal and put forward possible newly discovered facts.<\/p>\n 29. The second applicant contended that, notwithstanding the fact that he was given a suspended sentence, he should have been invited to attend the session of the appeal panel because the appellate court had been called upon to make a full assessment of his guilt or innocence.<\/p>\n 30. The Government argued that bringing the first applicant from pre-trial detention would not have been financially prudent. Besides, he had failed to substantiate why his presence at the session had been expedient, in particular considering that his lawyer had been invited to attend. As to the second applicant, the Government contended that under the relevant domestic law, where a defendant had been sentenced to a suspended term of imprisonment for an offence punishable up to five years\u2019 imprisonment, the appellate court had the discretion to decide whether it was expedient to allow that defendant to attend the session of the appeal panel. The Government further submitted that the appellate courts had correctly held that there was no reason for the first and second applicants to attend the respective sessions because they had been heard during the trial and had been awarded the opportunity to effectively participate in the first-instance proceedings.<\/p>\n 31. The Government further contended that the applicants\u2019 absence from the session of the appeal panel had not affected the fairness of the criminal proceedings against them given that the prosecution had not attended the sessions either. As concerns the second applicant, the Government stated that his case concerned criminal offences of lesser degree for which private prosecution was prescribed and which did not involve the participation of the State Attorney\u2019s Office as a prosecution authority in the trial (see paragraph 23 above). Besides, he had been afforded the same opportunity as the opposing party to put forward his arguments in the appeal proceedings. Moreover, his sentence had been reduced upon his appeal.<\/p>\n 32. Lastly, the Government argued that the present case should be distinguished from Zahirovi\u0107 v. Croatia (no. 58590\/11, 25 April 2013), in that the appellate court had not been called upon to assess the first and second applicants\u2019 personality or character given that they had not raised such issues in their appeals. In this respect they also relied on Kamasinski v.\u00a0Austria (19 December 1989, Series A no. 168).<\/p>\n 2. The Court\u2019s assessment<\/em><\/p>\n 33. The Court has repeatedly found violations of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention on account of the applicants not being allowed to be present at sessions of the appeal panel in the criminal proceedings against them (see Zahirovi\u0107, cited above, \u00a7\u00a7 54-64, 25 April 2013; Loni\u0107 v. Croatia, no.\u00a08067\/12, \u00a7\u00a7 90-102, 4 December 2014; Arps v. Croatia, no. 23444\/12, \u00a7\u00a7\u00a024-29, 25 October 2016; Bosak and Others v. Croatia, nos. 40429\/14 and 3 others, \u00a7\u00a7 105-109, 6 June 2019, and, most recently, Romi\u0107 and\u00a0Others v. Croatia, nos. 22238\/13 and 6 others, \u00a7\u00a7 99-103, 14 May 2020).<\/p>\n 34. The Court notes that the amendments made to the relevant domestic law removed the origin of violations found in those cases (see paragraph 22 above). However, in the proceedings complained of by the applicants, the earlier legislation and practice were applicable (see paragraphs 10 and 18 above and compare Romi\u0107 and Others, cited above, \u00a7 102).<\/p>\n 35. The Court notes that in their appeals the applicants each contested their conviction and sentence on both factual and legal grounds (see paragraphs 7 and 17 above). The appellate courts were therefore called upon to make a full assessment of their guilt or innocence in respect of the charges against them, in the light of not only the arguments they had raised before the first-instance court, but also those concerning the alleged failures of that court to establish all the relevant facts and to apply the relevant substantive and procedural rules correctly (see Bosak and Others, cited above, \u00a7 106; compare Abdulgadirov v. Azerbaijan, no. 24510\/06, \u00a7\u00a042, 20\u00a0June 2013, and Kozlitin v. Russia, no. 17092\/04, \u00a7 63, 14\u00a0November 2013; and contrast Fejde v. Sweden, 29 October 1991, \u00a7 33, Series A no.\u00a0212-C, and Hermi v. Italy [GC], no. 18114\/02, \u00a7 85, ECHR 2006-XII). However, contrary to the requirements of the above case-law, the appellate courts held sessions without the applicants being present (see paragraphs 10 and 18 above).<\/p>\n 36. The Government\u2019s argument concerning the second applicant, that in cases where suspended imprisonment were imposed the appellate courts had had the discretion to decide whether an applicant\u2019s presence at the session of the appeal panel was expedient, has already been dismissed by the Court in the case ofArps (cited above, \u00a7\u00a7 23 and 28).<\/p>\n 37. Furthermore, in the case ofLoni\u0107(cited above, \u00a7 100), the Court considered it irrelevant that the appeal against the first-instance judgment had been lodged only by the applicant or that the appellate court amended the first-instance judgment in a manner favourable to the applicant. In the Court\u2019s view, that had not affected the principal question brought before the second-instance court, namely whether the applicant was guilty or innocent, an issue which, in order for the trial to be fair, had required the applicant\u2019s presence at the session of the appeal panel. For the same reason the Court dismisses the Government\u2019s arguments put forward in paragraph 31 above.<\/p>\n 38. Accordingly, having regard to the above considerations and its case-law cited in paragraph 33 above, the Court finds that there has been a violation of Article6 \u00a7\u00a7 1 and 3 (c) of the Convention in respect of both applicants.<\/p>\n III. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 39. Article\u00a041 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A. Damage<\/strong><\/p>\n 40. The first applicant claimed 95,000 euros (EUR) in respect of non-pecuniary damage. The second applicant claimed EUR 6,500 in respect of pecuniary damage and EUR 3,000 in respect of non-pecuniary damage.<\/p>\n 41. The Government contested those claims deeming them excessive, unfounded and unsubstantiated.<\/p>\n 42. The Court does not discern any causal link between the violation found and the pecuniary damage alleged by the second applicant; it therefore rejects this claim. On the other hand, the Court finds that the applicants 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 EUR 1,500 to each applicant, plus any tax that may be chargeable.<\/p>\n B. Costs and expenses<\/strong><\/p>\n 43. The first applicant also claimed EUR 1,690 and the second applicant EUR 6,000 for the costs and expenses incurred before the domestic courts and before the Court.<\/p>\n 44. The Governmentsubmitted that the claims for expenses had been excessive and lodged without any supporting documents, and so should be rejected.<\/p>\n 45. 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 EUR 845 to each applicant.<\/p>\n 46. 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 EUR 845 to the first applicant and EUR 2,000 to the second applicant, plus any tax that may be chargeable to them.<\/p>\n C. Default interest<\/strong><\/p>\n 47. 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Decides to join the applications;<\/p>\n 2. Declares the applications admissible;<\/p>\n 3. Holds that there has been a violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention in respect of the applicants as regards their absence from the sessions of the appeal panel;<\/p>\n 4. Holds<\/p>\n (a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:<\/p>\n (i) EUR 1,500 (one thousand five hundred euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii) EUR 1,690 (one thousand six hundred and ninety euros) to the first applicant and EUR 2,845 (two thousand eight hundred and forty-five euros) to the second applicant, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;<\/p>\n (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;<\/p>\n 5. Dismisses the remainder of the applicants\u2019 claims for just satisfaction.<\/p>\n Done in English, and notified in writing on 18 March 2021, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Attila Tepl\u00e1n \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Alena Pol\u00e1\u010dkov\u00e1
\nAlena Pol\u00e1\u010dkov\u00e1, President,
\nP\u00e9ter Paczolay,
\nRaffaele Sabato, judges,
\nand Attila Tepl\u00e1n, ActingDeputy Section Registrar,<\/p>\n![\"INTRODUCTION\"](\"https:\/\/laweuro.com\/wp-content\/uploads\/2021\/10\/INTRODUCTION.jpg\")
<\/p>\n
\nArticle 173<\/p>\n
\nArticle 199<\/p>\n
\nActing Deputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n