FIRST SECTION
\nDECISION<\/p>\n
Application no.22388\/16
\nDavor \u0160IMUNDI\u0106
\nagainst Croatia<\/p>\n
The European Court of Human Rights (First Section), sitting on 26\u00a0March 2019 as a Committee composed of:<\/p>\n
Krzysztof Wojtyczek, President,
\nKsenijaTurkovi\u0107,
\nArmen Harutyunyan, judges,
\nand Renata Degener, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 13 April 2016,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr Davor\u0160imundi\u0107, is a Croatian national who was born in 1958 and lives in Osijek. He was represented before the Court by Ms V. Dren\u0161kiLasan, a lawyer practising in Zagreb.<\/p>\n 2.\u00a0\u00a0The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms \u0160. Sta\u017enik.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0On 1 February 2006 the applicant was indicted in the Osijek Municipal Court (Op\u0107inskisud u Osijeku) on two charges of serious criminal offences against people\u2019s health. Another person was indicted on one such charge. On 10 March 2006 the case was transferred to the Na\u0161ice Municipal Court (Op\u0107inskisud u Na\u0161icama).<\/p>\n 5.\u00a0\u00a0On 29 January 2013 the Na\u0161ice Municipal Court found the applicant guilty of one count of the charges and sentenced him to two years\u2019 imprisonment, suspended for five years.<\/p>\n 6.\u00a0\u00a0On 26 April 2013 the applicant lodged an appeal against the first\u2011instance judgment, complaining of a number of substantive and procedural flaws in the trial.<\/p>\n 7.\u00a0\u00a0On an unspecified date in 2013 the Osijek County Court (\u017dupanijskisud u Osijeku), acting as the court of appeal, forwarded the applicant\u2019s appeal and the Na\u0161ice Municipal Court\u2019s case file to the Osijek County State Attorney\u2019s Office (\u017dupanijskodr\u017eavnoodvjetni\u0161tvo u Osijeku) for their examination and opinion.<\/p>\n 8.\u00a0\u00a0On 12 July 2013 the Osijek County State Attorney\u2019s Office returned the case file to the Osijek County Court accompanied by a submission which read as follows:<\/p>\n \u201cWithin the meaning of Article 373 \u00a7 1 of the Code of Criminal Procedure, having completed the review, enclosed we are returning your case file in the criminal case against Davor\u0160imundi\u0107 and others, accused of the criminal offence referred to in Article 249 \u00a7 2 etc. of the Criminal Code, which was delivered for our consideration upon the appeal submitted by the Na\u0161ice Municipal State Attorney\u2019s Office (the reason referred to in Article 370 \u00a7 1 of the Code of Criminal Procedure) and by both accused (all grounds for appeal referred to in Article 366 of the Code of Criminal Procedure), against the judgment of the Na\u0161ice Municipal Court no. K-175\/06 of 19\u00a0January 2013.\u201d<\/p>\n The submission in question was not forwarded to the defence.<\/p>\n 9.\u00a0\u00a0On 26 September 2013 the Osijek County Court held a session which the applicant and his lawyer attended. The Deputy Osijek County State Attorney\u2019s Office also attended the session.<\/p>\n 10.\u00a0\u00a0On the same day the Osijek County Court dismissed the applicant\u2019s appeal, as well as the appeals submitted by his co-defendant and the Osijek Municipal State Attorney\u2019s Office, and upheld the first-instance judgment.<\/p>\n 11.\u00a0\u00a0On 30 January 2014 the applicant lodged a constitutional complaint with the Constitutional Court (UstavnisudRepublikeHrvatske) arguing, inter alia, that his right to a fair trial had been violated because the submission of the Osijek County State Attorney\u2019s Office had not been communicated to the defence.<\/p>\n 12.\u00a0\u00a0On 26 November 2015 the Constitutional Court dismissed the applicant\u2019s constitutional complaint as unfounded. It found that, having regard to the content of the submission of the Osijek County State Attorney\u2019s Office of 12 July 2013, as well as the fact that the applicant and his lawyer had been present at the session of the appeal panel, the fact that the submission in question had not been forwarded to the applicant had not breached his constitutional rights.<\/p>\n 13.\u00a0\u00a0The decision of the Constitutional Court was served on the applicant\u2019s representative on 18 January 2016.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 14.\u00a0\u00a0The relevant domestic law in force at the material time, concerning forwarding a reasoned submission of the State Attorney\u2019s Office in the course of the appeal proceedings to the defence is set out in the case of Zahirovi\u0107 v. Croatia, (no. 58590\/11, \u00a7\u00a7 23 and 25, 25 April 2013).<\/p>\n COMPLAINT<\/strong><\/p>\n 15.\u00a0\u00a0The applicant complained that he had not had a fair trial in that the submission of theOsijek County State Attorney\u2019s Officeto the Osijek County Court had not been communicated to the defence.<\/p>\n THE LAW<\/strong><\/p>\n 16.\u00a0\u00a0The applicant relied on Article 6 \u00a7 1 of the Convention, which in the relevant part reads as follows:<\/p>\n \u201c1.\u00a0\u00a0In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by an … impartial tribunal established by law. …\u201d<\/p>\n A.\u00a0\u00a0The parties\u2019 arguments<\/strong><\/p>\n 17.\u00a0\u00a0The Government contended that the submission of the Osijek County State Attorney\u2019s Office had been of a purely technical nature and had not contained any opinion on the parties\u2019 appeals or any other aspect of the case. It could not have therefore influenced the Osijek County Court\u2019s decision in any manner. That was precisely why the Constitutional Court had dismissed the applicant\u2019s constitutional complaint in that respect.<\/p>\n 18.\u00a0\u00a0The applicant maintained that there had been a violation of his right to a fair trial.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 19.\u00a0\u00a0In the cases of Zahirovi\u0107(cited above, \u00a7\u00a7 44-50) and Loni\u0107v.\u00a0Croatia (no. 8067\/12, \u00a7\u00a7 83-86, 4 December 2014), the Court found a violation of the principle of equality of arms and the right to adversarial proceedings under Article 6 \u00a7 1 of the Convention on the grounds that a submission of the competent State Attorney\u2019s Office to the appellate court had not been forwarded to the defence. It held that, in view of the fact that the observations of the competent State Attorney\u2019s Office constituted reasoned opinions on the merits of the case, aiming to influence the appellate court\u2019s decision by calling for the appeal to be dismissed, it did not need to determine whether the omission to forward the relevant document had been prejudicial to the applicant; the existence of a violation was conceivable even in the absence of prejudice (see Zahirovi\u0107, cited above, \u00a7\u00a7 48 and 49, and Loni\u0107, cited above, \u00a7 84).<\/p>\n 20.\u00a0\u00a0Unlike in the case of Zahirovi\u0107, in which the competent State Attorney\u2019s submission constituted a reasoned opinion on the substantive and procedural issues raised by the parties in their appeals (see Zahirovi\u0107, cited above, \u00a7\u00a7 16 and 45), and the case of Loni\u0107, in which it constituted a reasoned opinion that the appeal lodged by the defence be dismissed (see\u00a0Loni\u0107, cited above, \u00a7 10), in the present case the submission of the Osijek County State Attorney\u2019s Office did not contain any opinion or proposal whatsoever as regards the applicant\u2019s case. It simply stated that the case file, which had been forwarded to them for examination upon the parties\u2019 appeals, was being returned to the Osijek County Court (see\u00a0paragraph 8 above).<\/p>\n 21.\u00a0\u00a0The submission of the Osijek County State Attorney\u2019s Office was therefore simply a letter of a purely technical nature, devoid of any observation on the applicant\u2019s case. Indeed, there appears to have been no material element in the letter for the applicant to comment on (see, by contrast, Zahirovi\u0107, cited above, \u00a7\u00a047).<\/p>\n 22.\u00a0\u00a0Against the above background, it cannot be said that the principle of equality of arms and the right to adversarial proceedings have not been respected in the proceedings in question.<\/p>\n 23.\u00a0\u00a0It follows that the complaint is inadmissible under Article 35 \u00a7 3 (a) as manifestly ill-founded and must therefore be rejected pursuant to Article\u00a035 \u00a7 4 thereof.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 18 April 2019.<\/p>\n Renata Degener\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Krzysztof Wojtyczek
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n