\nCASE OF MIR\u010cETI\u0106 v. CROATIA<\/strong>
\n(Application no. 30669\/15)<\/em>
\nJUDGMENT<\/p>\n
Art 6 \u00a7 1 (criminal) and Art 6 \u00a7 3 (c) \u2022 Fair hearing \u2022 Defence in person \u2022 Applicant\u2019s absence from the session of the appeal panel in the criminal proceedings against him<\/p>\n
STRASBOURG
\n22 April 2021<\/p>\n
This judgment will become final in the circumstances set out in Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Mir\u010deti\u0107 v. Croatia,<\/strong><\/p>\n The European Court of Human Rights (First Section), sitting as a Chamber composed of:<\/p>\n Krzysztof Wojtyczek, President, Having regard to:<\/p>\n the application (no.\u00a030669\/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 (\u201cthe Convention\u201d) by a Croatian national, Mr \u0110or\u0111e Mir\u010deti\u0107 (\u201cthe applicant\u201d), on 18 June 2015;<\/p>\n the decision to give notice to the Croatian Government (\u201cthe Government\u201d) of the complaint under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention and to declare inadmissible the remainder of the application;<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 16 March 2021,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n 1. The case concerns the applicant\u2019s complaint, under Article\u00a06 \u00a7\u00a7\u00a01\u00a0and\u00a03 (c) of the Convention, that in the criminal proceedings against him he was not given an opportunity to be present at the session of the appeal panel.<\/p>\n THE FACTS<\/strong><\/p>\n 2. The applicant was born in 1948 and lives in Zagreb. He was represented by Mr \u010c. Prodanovi\u0107, a lawyer practising in Zagreb.<\/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 5. On 4 July 2011 the Zagreb County State Attorney\u2019s Office (\u017dupanijsko dr\u017eavno odvjetni\u0161tvo u Zagrebu) indicted the applicant in the Zagreb County Court (\u017dupanijski sud u Zagrebu) on charges of rape.<\/p>\n 6. On 29 November 2011 the Zagreb County Court found the applicant guilty as charged and sentenced him to four years\u2019 imprisonment. The court found the applicant\u2019s version of events unconvincing and based the conviction mainly on the victim\u2019s testimony.<\/p>\n 7. On 19 December 2011 the applicant lodged an appeal against the judgment of the Zagreb County Court with the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the factual and legal grounds for his conviction and sentence. He submitted that he had not committed the criminal offence for which he had been convicted, that the first-instance court had wrongfully assessed the evidence and that a wrong conclusion had been drawn from the established facts.<\/p>\n 8. In particular, he argued that the victim\u2019s testimony, on which his conviction had been based, had been illogical, incoherent and unreliable. In that regard, the applicant pointed out to the fact that the victim\u2019s statement given during the pre-trial investigation differed from her statement given during the trial. He complained that the trial court had failed to call a defence witness he had asked to be called. Lastly, he noted that the first-instance court unduly took the inappropriate defamation and moral disqualification of the victim as aggravating circumstance given that his intention had not been to disqualify or degrade the injured party. Thus, according to him, the sentence imposed on him had been too severe. The applicant asked to be acquitted or that a less severe sentence be imposed on him in case the appeal court decided to uphold his conviction. Alternatively, the applicant asked the appeal court to quash the first-instance judgment and remit the case to the lower court. Subsequently, after the time-limit for lodging an appeal had expired, he asked for his lawyer to be invited to the session of the appeal panel.<\/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 Zagreb County Court, calling for the dismissal of the appeal.<\/p>\n 10. On 24 June 2014 the Supreme Court held a session without informing the applicant or his lawyer of it. On the same day it adopted a judgment in which it upheld the applicant\u2019s conviction, but it did so underthe new, more lenient Criminal Code, and sentenced him to two and a half years\u2019 imprisonment. The Supreme Court also discounted the period spent in police custody (between 28 November 2010 and 29 November 2010) from the custodial sentence imposed. It appears therefore that at the time the session of the appeal panel took place, the applicant was not either in pre-trial detention or serving a sentence. The Supreme Court did not provide any reasons as to why neither the applicant nor his lawyer had been invited to attend the session.<\/p>\n 11. On 30 January 2015 the 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 12. On 31 March 2015 the Constitutional Court declared the applicant\u2019s constitutional complaint inadmissible as manifestly ill-founded.<\/p>\n 13. The decision of the Constitutional Court was served on the applicant\u2019s representative on 24 April 2015.<\/p>\n RELEVANT LEGAL FRAMEWORK<\/strong><\/p>\n 14. 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 Romi\u0107 and Others v. Croatia (nos. 22238\/13 and 6 others, \u00a7\u00a7 65 and 66, 14\u00a0May 2020, with further references).<\/p>\n THE LAW<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 and 3 (c) OF THE CONVENTION<\/p>\n 15. The applicant complained that he had not had a fair trial. He alleged in particular that the session of the appeal panel had been held in his absence.<\/p>\n 16. The applicant 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;<\/p>\n …\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 17. The Court notes that this complaint is neither manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) and 4 of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 1. The parties\u2019 arguments<\/em><\/p>\n 18. The applicant submitted that his presence at the session of the appeal panel had been necessary because his conviction had been based solely on evidence given by the victim, whose reliability had been questionable (see paragraphs 6 and 8 above). He should have been allowed to attend the session in order to be able to clarify the relevant facts.<\/p>\n 19. The Government argued that the applicant had waived his right to attend the session of the appeal panel by failing to ask in his appeal to be invited to attend the session (see paragraph 8 above). However, the Government contended that even in the absence of a defendant\u2019s request in that regard, under the relevant domestic law and practice in situations such as that in the applicant\u2019s case, the appellate court would have the discretion to decide whether it was useful for the clarification of the case to invite a defendant to be present at the session. In this connection, the Government argued that the appellate court had correctly held that there had been no reason for the applicant to attend the session because he had been heard during the trial, and had been given the opportunity to participate effectively in the first-instance proceedings.<\/p>\n 20. The Government also submitted that the applicant\u2019s absence from the session of the appeal panel had not affected the fairness of the criminal proceedings against him, given that the prosecution had also not been invited to attend the session. In addition, the prosecution had not appealed against the first-instance judgment and the hierarchically higher State Attorney\u2019s Office had not asked in its reasoned opinion for a more severe sentence to be imposed on him. Moreover, the applicant\u2019s sentence had been reduced on appeal.<\/p>\n 21. 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 in the present case had not been called upon to assess the applicant\u2019s personality or character, given that he had not raised such issues in his appeal. In this connection they also relied on Kamasinski v.\u00a0Austria (19 December 1989, Series A no. 168).<\/p>\n 2. The Court\u2019s assessment<\/em><\/p>\n 22. The Court notes that the fact that violations of Article\u00a06 \u00a7\u00a7\u00a01\u00a0and\u00a03\u00a0(c) have repeatedly been found in cases against Croatia originated in a situation where, under the relevant domestic law and practice applicable at the time, the appellate courts did not notify defendants about a forthcoming session of the appeal panel if they were in detention and had a lawyer, or if in summary proceedings they had received a fine or a suspended sentence (see Zahirovi\u0107, cited above, \u00a7\u00a7 54-64, 25 April 2013; Loni\u0107 v. Croatia, no. 8067\/12, \u00a7\u00a7 90-102, 4 December 2014; Arps v.\u00a0Croatia, no. 23444\/12, \u00a7\u00a7 24-29, 25 October 2016; Bosak and Others v.\u00a0Croatia, nos. 40429\/14 and 3 others, \u00a7\u00a7 105-09, 6 June 2019; and Romi\u0107 and Others v. Croatia, nos. 22238\/13 and 6 others, \u00a7 102, 14 May 2020).<\/p>\n 23. In the present case the applicant received a prison sentence but it appears that at the time that the session of the appeal panel took place he was not in pre-trial detention or serving a sentence (see paragraph\u00a010 above). Accordingly, the present case does not fall within one of the situations in which the courts would not have ensured the applicant\u2019s presence at the session regardless of whether the applicant had asked to be present (see paragraph 14 above, with reference to Article 374 \u00a7 2 of the 1997 Code of Criminal Procedure, and contrast Zahirovi\u0107, cited above, \u00a7\u00a061; Loni\u0107, cited above, \u00a7 97; and Bosak and Others,cited above, \u00a7 108).<\/p>\n 24. The Court observes that the applicant did not ask in his appeal to be invited to the session of the appeal panel and it was not until later that he asked that his lawyer be present (see paragraph 8 above). However, as the Government pointed out, under the domestic law in force at the material time, the appellate court could have invited the defendant to attend the session even in the absence of such a request if it considered that the defendant\u2019s presence would be useful for the clarification of the case (see paragraph 14 above, and Article 374 \u00a7 1 of the 1997 Code of Criminal Procedure). Furthermore, there is nothing in the case file to lead to the conclusion that the failure to invite the applicant to attend the session of the appeal panel was motivated by the fact that he had failed to submit a (timely) request (see paragraph 10 above). In these circumstances, the Court finds that the fact that the applicant did not ask to attend the session cannot be held against him (compare Kremzow v. Austria, 21 September 1993, \u00a7\u00a068, Series A no. 268\u2011B, and Pobornikoff v. Austria, no. 28501\/95, \u00a7\u00a032, 3\u00a0October 2000 and contrast Hermi v. Italy [GC], no. 18114\/02, \u00a7\u00a073, ECHR 2006-XII; Murtazaliyeva v. Russia [GC], no.36658\/05, \u00a7\u00a7 117, 118 and 127, 18 December 2018; and Lamatic v. Romania, no. 55859\/15, \u00a7\u00a7\u00a048\u00a0and 62, 1 December 2020).<\/p>\n 25. The Court observes that, under the Croatian legal system, the appeal court had competence to examine points of both fact and law and to conduct a full review of the assessment of the accused\u2019s guilt or innocence.\u00a0It could uphold, quash or reverse the first-instance judgment and increase or decrease the sentence imposed by the trial court (see paragraph 14 above). In this connection the Court refers to its case-law cited in J\u00fal\u00edus \u00de\u00f3r Sigur\u00fe\u00f3rsson v. Iceland, no. 38797\/17, \u00a7 33, 16 July 2019. The Court further observes that the applicant was convicted of rape (see paragraph\u00a06 above) and therefore the re-examination of the conviction on appeal was of particular importance for him (see Sergey Timofeyev v. Russia, no.\u00a012111\/04, \u00a7 80, 2 September 2010).<\/p>\n 26. Moreover, in his appeal the applicant denied the commission of the impugned offence and contested his conviction and sentence on both factual and legal grounds (see paragraphs 7 and 8 above). He submitted, in particular, that the victim\u2019s testimony, on which the first-instance court based his conviction, had been illogical, incoherent and unreliable because the statement she had given during the pre-trial investigation differed from her statement given in the course of the trial. He also complained that the trial court had failed to call a defence witness he had asked to be called. The Court considers that these arguments indicate that the applicant wanted to obtain a review of both the admissibility and reliability of the evidence obtained and of the facts established by the first-instance court.<\/p>\n 27. Furthermore, the applicant also complained that the first-instance court had imposed a too severe sentence on him by wrongly holding that he had defamed and morally disqualified the victim, while according to him, that had not been his intention. The applicant asked the appeal court to reverse the first-instance judgment and acquit him or to reduce his sentence in case his conviction would be upheld. Alternatively, he asked the appeal court to quash his conviction; the prosecutor asked it to uphold the applicant\u2019s conviction. The appellate 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 of not only the arguments that he had raised before the first-instance court, but also of 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 42, 20\u00a0June 2013, and Kozlitin v. Russia, no. 17092\/04, \u00a7 63, 14 November 2013; and contrast Fejde v. Sweden, 29 October 1991, \u00a7 33, Series A no.\u00a0212-C, and Hermi, cited above, \u00a7 85). However, contrary to the requirements of the above-mentioned case-law, the appellate court held the session without the applicant being present (see paragraph 10 above).<\/p>\n 28. In the case ofLoni\u0107(cited above, \u00a7 100), the Court considered it irrelevant that the appeal against the first\u2011instance judgment had been lodged only by the applicant, or that the appellate court amended the first-instance judgment in a manner and to an extent 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\u00a019 above.<\/p>\n 29. Accordingly, having regard to the above considerations, the Court finds that there has been a violation of Article6 \u00a7\u00a7 1 and 3 (c) of the Convention on the grounds of the applicant\u2019s absence from the session of the appeal panel in the criminal proceedings against him.<\/p>\n II. APPLICATION OF ARTICLE41 OF THE CONVENTION<\/p>\n 30. Article41 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 31. The applicant claimed 12,800 euros (EUR) in respect of pecuniary damage and EUR 20,000 in respect of non-pecuniary damage.<\/p>\n 32. The Government contested those claims, deeming them excessive, unfounded and unsubstantiated.<\/p>\n 33. The Court does not discern any causal link between the violation found and the pecuniary damage alleged by the applicant; it therefore rejects this claim. On the other hand, 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 and in view of the relative gravity of the violation, the Court awards him EUR\u00a01,500, plus any tax that may be chargeable to him.<\/p>\n B. Costs and expenses<\/strong><\/p>\n 34. The applicant also claimed EUR 3,900 for the costs and expenses incurred before the domestic courts and before the Court.<\/p>\n 35. The Governmentsubmitted that the claim for expenses was excessive and had been lodged without any supporting documents, and so should be rejected.<\/p>\n 36. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the applicant EUR 845 in respect of the costs and expenses incurred before the domestic courts, and EUR 845 in respect of those incurred before the Court, plus any tax that may be chargeable to him.<\/p>\n C. Default interest<\/strong><\/p>\n 37. 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. Declares the application admissible;<\/p>\n 2. Holds that there has been a violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention as regards the applicant\u2019s absence from the session of the appeal panel;<\/p>\n 3. Holds<\/p>\n (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i) EUR 1,500 (one thousand five hundred euros), 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), plus any tax that may be chargeable to the applicant, 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 4. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 22 April 2021, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Renata Degener\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Krzysztof Wojtyczek
\nKsenija Turkovi\u0107,
\nAlena Pol\u00e1\u010dkov\u00e1,
\nErik Wennerstr\u00f6m,
\nRaffaele Sabato,
\nLorraine Schembri Orland,
\nIoannis Ktistakis, judges,
\nand Renata Degener, Section Registrar,<\/p>\n![\"INTRODUCTION\"](\"https:\/\/laweuro.com\/wp-content\/uploads\/2021\/10\/INTRODUCTION.jpg\")
<\/p>\n
\nRegistrar\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n