FIRST SECTION
\nCASE OF KLIBA v. CROATIA
\n(Application no. 30375\/16)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n18 April 2019<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Kliba v. Croatia,<\/strong><\/p>\n The European Court of Human Rights (First Section), sitting as a Committee composed of:<\/p>\n Ale\u0161 Pejchal, President, Having deliberated in private on 26 March 2019,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 30375\/16) against the Republic of Croatia lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Croatian national, Mr Slobodan Kliba (\u201cthe applicant\u201d), on 24 May 2016.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Ms V. Dren\u0161kiLasan, a lawyer practising in Zagreb. The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms \u0160. Sta\u017enik.<\/p>\n 3.\u00a0\u00a0On 12\u00a0July 2018 notice of the complaint concerning the fairness of the criminal proceedings was given to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54\u00a0\u00a7\u00a03 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1954 and lives in Vodnjan.<\/p>\n 5.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 6.\u00a0\u00a0On 9 July 2010 the applicant was indicted before the Pula-Pola Municipal Court (Op\u0107inskisud u Puli-Pola) on charges of indecent behaviour.<\/p>\n 7.\u00a0\u00a0He was tried in summary proceedings (skra\u0107enipostupak). During the proceedings before the first- and the second-instance courts he was represented by a lawyer, M.K.<\/p>\n 8.\u00a0\u00a0On 11 October 2011 the Pula-Pola Municipal Court found the applicant guilty as charged and sentenced him to one year\u2019s imprisonment.<\/p>\n 9.\u00a0\u00a0On 7 November 2011 the applicant lodged an appeal with the Pula\u2011Pola County Court (\u017dupanijskisud u Puli-Pola), challenging the factual and legal grounds for his conviction and sentence. He did not ask that he or his lawyer be invited to the session of the appeal panel.<\/p>\n 10.\u00a0\u00a0On an unspecified date in 2011, the Pula-Pola County Court, acting as the court of appeal, forwarded the applicant\u2019s appeal and the Pula-Pola Municipal Court\u2019s case file to the Pula\u2011Pola County State Attorney\u2019s Office (\u017dupanijskodr\u017eavnoodvjetni\u0161tvo u Puli-Pola) for their examination and opinion.<\/p>\n 11.\u00a0\u00a0On 7 December 2011 the Pula-Pola County State Attorney\u2019s Office returned the case file to Pula-Pola County Court accompanied by a submission which read as follows:<\/p>\n \u201cIn the criminal case against Slobodan Kliba, accused of the criminal offence referred to in Article 193 \u00a7 2 in conjunction with Article 192 \u00a7 1 of the Criminal Code, the defence lodged an appeal against the judgment of the Pula Municipal Court No. K-344\/10 of 11 October 2011 complaining about errors of facts, alleging that the Criminal Code had been violated and challenging the sanction as well as the decision concerning costs and expenses.<\/p>\n I consider the appeal unfounded, therefore I propose that it be dismissed as in my opinion the facts in the criminal proceedings in question were duly established. The Criminal Code was not violated and the sanction inflicted is appropriate, considering the type and seriousness of the criminal offence of which the accused was found guilty. The costs of proceedings were properly estimated and can be borne by the accused, regard being had to his financial status.\u201d<\/p>\n The submission in question was not forwarded to the defence.<\/p>\n 12.\u00a0\u00a0On 20 January 2012 the Pula-Pola County Court held a session which the parties did not attend. On the same day it dismissed the appeal as unfounded and upheld the first-instance judgment.<\/p>\n 13.\u00a0\u00a0On 13 March 2012 the applicant, represented by lawyer V.D.L., lodged a constitutional complaint with the Constitutional Court (UstavnisudRepublikeHrvatske) complaining, inter alia, that his right to a fair trial had been violated because the submission of the Pula-Pola County State Attorney\u2019s Office had not been communicated to the defence.<\/p>\n 14.\u00a0\u00a0On 14 January 2016 the Constitutional Court dismissed the applicant\u2019s constitutional complaint as unfounded. It held thatthe fact that the Pula-Pola County State Attorney\u2019s Office submission of 12 July 2013 had not been forwarded to the applicant had not breached his constitutional rights, having regard to the content of the submission, the fact that he had been tried in summary proceedings and that he had not asked that he or his lawyer be invited to the session of the appeal panel.<\/p>\n 15.\u00a0\u00a0The decision of the Constitutional Court was served on the applicant\u2019s representative on 2 February 2016.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n 16.\u00a0\u00a0The relevant domestic law in force at the material time, concerning the forwarding of a reasoned submission of the State Attorney\u2019s Office in the course of appeal proceedings to the defence is set out in the cases of Zahirovi\u0107 v. Croatia, (no. 58590\/11, \u00a7\u00a7 23 and 25, 25 April 2013), and Loni\u0107 v. Croatia, (no. 8067\/12, \u00a7\u00a7 36 and 37, 4 December 2014).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 17.\u00a0\u00a0The applicant complained that he had not had a fair trial in that the submission of theState Attorney\u2019s Officeto the appellate court in the criminal proceedings against him had not been communicated to the defence. He 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\u00a0Admissibility<\/strong><\/p>\n 18.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 arguments<\/em><\/p>\n 19.\u00a0\u00a0The applicant maintained that there had been a violation of his right to a fair trial.<\/p>\n 20.\u00a0\u00a0The Government contended that the Pula-Pola County State Attorney\u2019s Office\u2019s submission contained only general statements, and that it was not substantiated by the analysis of either factual or legal issues of the case. It could not have influenced the Pula-Pola County Court\u2019s decision in any manner. There had therefore been no reason to communicate the submission in question to the defence.<\/p>\n 21.\u00a0\u00a0They further submitted that, in the proceedings before the first- and the second-instance courts, the applicant had been represented by an experienced lawyer, M.K., who ought to have known that the appeal submitted by the defence and the first-instance case file would be forwarded to the competent State Attorney\u2019s Office for examination and opinion. The lawyer could therefore have asked to be granted access to the second\u2011instance case file, and for the State Attorney\u2019s submission to be communicated to the defence. Moreover, neither the applicant nor his lawyer had asked to be present at the session of the appeal panel. Had they done so, they could have learned about the State Attorney\u2019s submission and replied to it.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 22.\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.<\/p>\n 23.\u00a0\u00a0As in Zahirovi\u0107, under the relevant domestic law applicable at the material time, in the present case there was no obligation on the part of the courts to forward the opinion of the competent State Attorney to the defence (see paragraph 16 above, with further references to \u00a7\u00a7 23 and 25 of the Zahirovi\u0107judgment, in particular Article 373 of the 1997 Code of Criminal Procedure).<\/p>\n 24.\u00a0\u00a0Referring to the Government\u2019s argument that the prosecution\u2019s submission in question contained only general statements and that it could not have influenced the appellate court\u2019s decision in any manner (see\u00a0paragraph 20 above), the Court notes that the submission constituted a reasoned opinion on the merits of the case, aiming to influence the appellate court\u2019s decision by calling for the appeal to be dismissed (see paragraph 11 above). The Court reiterates that the principle of equality of arms does not depend on further, quantifiable unfairness flowing from a procedural inequality. It is a matter for the defence to assess whether a submission deserves a reaction. It is therefore unfair for the prosecution to make submissions to a court without the knowledge of the defence (see Zahirovi\u0107, cited above, \u00a7\u00a7 43 and 48; Loni\u0107, cited above, \u00a7 84, and Bulut v. Austria, 22\u00a0February 1996, \u00a7 49, Reports of Judgments and Decisions 1996\u2011II).<\/p>\n 25.\u00a0\u00a0As to the Government\u2019s argument that the applicant\u2019s lawyer ought to have known that the appeal submitted by the defence and the first\u2011instance case file would be forwarded to the competent prosecutor for examination and opinion, and could therefore have asked to be granted access to the second-instance case file and for the prosecution\u2019s submission to be communicated to the defence (see paragraph 21 above), the Court reiterates that it was for the domestic courts to inform the applicant that the opinion had been filed and that he could, if he so wished, comment on it in writing (see, for example, G\u00f6\u00e7 v. Turkey [GC], no. 36590\/97, \u00a7 57, ECHR\u00a02002 V). To require the applicant\u2019s lawyer to take the initiative and inform himself periodically on whether any new elements have been included in the case file would amount to imposing a disproportionate burden on him and would not necessarily have guaranteed a real opportunity to comment on the opinion (ibid., and Milatov\u00e1 and Others v. the Czech Republic, no.\u00a061811\/00, \u00a7 61, ECHR 2005 V).<\/p>\n 26.\u00a0\u00a0Lastly, the Government argued that had the applicant or his lawyer asked to be present at the session of the appeal panel they could have learned about the State Attorney\u2019s submission and replied to it (see\u00a0paragraph 21 above). The Court does not share this view since accepting that argument would in effect mean that the question of whether or not the defendant would be informed of the fact that observations regarding the merits of his case have been filed by the prosecution would entirely depend on the presence of the defence at the session of the appeal panel. This, in the Court\u2019s assessment, would likewise amount to imposing a disproportionate burden on the defence and would render meaningless the right of the defence to have knowledge of, and to comment on, the prosecution\u2019s submission in the appeal proceedings.<\/p>\n 27.\u00a0\u00a0Against the above background, the Court concludes that the principle of equality of arms and the right to adversarial proceedings have not been respected in the present case.<\/p>\n 28.\u00a0\u00a0There has accordingly been a violation of Article 6 \u00a7 1 of the Convention.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 29.\u00a0\u00a0Article\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.\u00a0\u00a0Damage<\/strong><\/p>\n 30.\u00a0\u00a0The applicant claimed 2,500 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n 31.\u00a0\u00a0The Government deemed this claim excessive and unsubstantiated.<\/p>\n 32.\u00a0\u00a0Having given due consideration to all the circumstances of the present case, the Court accepts that the applicant has 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 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 33.\u00a0\u00a0The applicant also claimed 10,000 Croatian kunas (HRK) (approximately EUR 1,345) for the costs and expenses incurred before the domestic courts and EUR 1,200 for those incurred before the Court.<\/p>\n 34.\u00a0\u00a0The Government contested these claims.<\/p>\n 35.\u00a0\u00a0According to the Court\u2019s 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 were reasonable as to quantum.<\/p>\n 36.\u00a0\u00a0In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 850 for costs and expenses incurred in the proceedings before the domestic courts and EUR 1,000 for those incurred before the Court, plus any tax that may be chargeable to the applicant.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 37.\u00a0\u00a0The 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.\u00a0\u00a0Declaresthe application admissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 1,850 (one thousand eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that 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.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 18 April 2019, 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\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 Ale\u0161Pejchal
\nTim Eicke,
\nJovan Ilievski, judges,
\nand Renata Degener, Deputy Section Registrar,<\/p>\n
\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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n