In the case of Zahirović v. Croatia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefčvre,
President,
Khanlar Hajiyev,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Mřse,
Ksenija Turković,
Dmitry Dedov, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 2 April 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
58590/11) 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 stateless person, Mr Zajko Zahirović
(“the applicant”), on 6 September 2011.
The applicant was represented by Ms V. Drenški
Lasan, a lawyer practising in Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Ms Š. Stažnik.
On 8 November 2011 the complaints concerning the
alleged lack of impartiality of the trial court, the alleged violation of the
principle of equality of arms and the applicant’s absence from the appeal
hearing before the Supreme Court were communicated to the Government. It was
also decided to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1975 and lives in Zagreb.
On 22 October 2003 an investigating judge of the
Zagreb County Court (Županijski sud u Zagrebu) opened an investigation
in respect of the applicant in connection with suspicions that on 5 July 2003
he had put at risk the life and limb of others by firing shots in his partner’s
flat and that on 6 July 2003 he had attempted to murder three persons by
shooting at them in a nightclub. The investigating judge ordered the applicant’s
detention but the applicant remained at large.
The applicant appeared before the investigating
judge of the Zagreb County Court on 28 April 2004. He was questioned and
remanded in custody on the same day.
On 24 June 2004 the Zagreb County State Attorney’s
Office (Županijsko državno odvjetništvo u Zagrebu) indicted the
applicant in the Zagreb County Court, alleging that on 5 July 2003 he had put
at risk the life and limb of others and that on 6 July 2003 he had attempted to
murder three persons.
Judge Z.K. assumed responsibility for the
applicant’s case as the president of a trial panel of the Zagreb County Court.
On 2 September 2004 a three-judge panel of the
Zagreb County Court, composed of Judges D.T., E.D. and M.G., extended the
applicant’s detention on the grounds provided for under Article 102 § 1(3)
of the Code of Criminal Procedure (risk of reoffending). The relevant part of
the decision reads:
“... the accused is indicted under count two, namely that on 5
July 2003 in the flat of his partner S.O. he fired two shots from a gun at a
wall, irrespective of the fact that R.Z. and Z.Kor. were present in the same
room and that he was aware that the bullets could ricochet from the wall and
hurt any of the persons present. Under count one, he is indicted on the ground
that on 6 July 2003 in a nightclub, after a verbal dispute with K.G., he fired
several times from a gun and then fired all the remaining bullets from the gun
at A.P. and M.V. ... with the aim of murdering them, and K.G.’s life was saved
by medical intervention.
The above shows the accused’s brutality, determination, high
degree of criminal resolve and obvious propensity towards such criminal
behaviour, all of which, in the opinion of this court, continues to justify the
extension of his detention because of the fear that [if at large] he would commit
a further criminal offence.”
On 28 April 2006 a three-judge panel of the Zagreb County Court found that the maximum statutory period of the applicant’s detention had
expired and ordered that he be released from detention. Judge M.G. was a member
of that panel.
On 16 September 2008 the Vice-President of the
Criminal Division of the Zagreb County Court reassigned the applicant’s case to
Judge M.G. because in the meantime Judge Z.K. had become a judge of the Supreme
Court (Vrhovni sud Republike Hrvatske).
On 27 November 2009 a trial panel of the Zagreb
County Court, presided over by Judge M.G., found the applicant guilty of the
attempted murder of three persons and dismissed the charge of putting at risk
the life and limb of others on the ground that the prosecution had withdrawn
that charge. The applicant was sentenced to six years’ imprisonment.
On 2 February 2010 the Zagreb County State
Attorney’s Office lodged an appeal with the Supreme Court against the Zagreb
County Court’s judgment, seeking a more severe sentence.
The applicant lodged an appeal against the
Zagreb County Court’s judgment with the Supreme Court on 16 February 2010, complaining
of a number of substantive and procedural flaws, and notably that Judge M.G. had
not been impartial. The applicant contended that by being a member of a panel
which had extended his pre-trial detention, Judge M.G. had already formed his
opinion about the charges against the applicant.
On an unspecified date in 2010, the Supreme
Court, acting under Article 373 § 1 of the Code of Criminal Procedure,
forwarded the parties’ appeals and the Zagreb County Court’s case file to the State
Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike
Hrvatske) for their examination and opinion.
On 16 March 2010 the State Attorney’s Office of
the Republic of Croatia submitted an opinion to the Supreme Court on both
appeals, however, this opinion was not communicated to the defence. The opinion
reads:
“Please find enclosed the Zagreb County Court’s case file no.
K-124/04 concerning the criminal proceedings against the accused Zajko
Zahirović, charged with the offences under Article 90 in conjunction with
Article 33 of the Criminal Code, which was forwarded [to the State Attorney’s
Office of the Republic of Croatia] after the [Zagreb] State Attorney’s Office
and the accused’s lawyer had submitted their appeals ...
As to the appeal lodged by the [Zagreb] State Attorney’s Office
concerning the sentence, we consider that it was correctly pointed out that the
[first-instance] court sentenced [the applicant] to a rather lenient sentence
of imprisonment which appears absolutely inappropriate in view of the
circumstances of the offence and his personality ... It was correctly pointed
out that certain aggravating factors had been significantly underestimated,
namely the grave consequences for [the health of] K.G. and the other victims.
Furthermore, the [first-instance] court failed to take into account the accused’s
attitude towards the victims and the damage caused by the offences, as well as
his lack of any remorse for or apology to the victims. This all should be taken
into account in the sentencing procedure and should eventually lead to a more
severe sentence as requested by the [Zagreb] State Attorney’s Office.
As to the appeal lodged by the defence, it is to be noted that
there has been no fundamental miscarriage of justice in the proceedings, within
the meaning of Article 367 ... of the Code of Criminal Procedure,
concerning the impartiality of the trial judge, who [allegedly] should have
been excluded from the case. In his submission the appellant refers to the
case-law of the Constitutional Court and the European Court of Human Rights
concerning the exclusion of a judge who presides over a trial panel, having
already decided on the accused’s detention at the pre-trial stage of the
proceedings. The case-law of the Constitutional Court referred to [by the
appellant] concerns the particular circumstances of the case at hand and not
the [general] circumstances contemplated in Article 36 of the Code of Criminal
Procedure. As to the case-law of the European Court of Human Rights, it is to
be noted, regardless of the case-law referred to [by the appellant], that a
judge’s impartiality is presumed until there is proof to the contrary and since
in the case at issue there are no objective circumstances which could raise
doubts as to the impartiality of the judge who presided over the trial panel,
such case-law is not applicable to the present case.
As to the [complaint alleging] substantive flaws in that no
reference was made to the Articles of the amended Criminal Code, it is to be
noted that the Criminal Code was not amended as regards Article 90 and that the
court in the present case correctly applied the relevant provision ...
As to the factual findings [of the first-instance court], we
consider that all the relevant facts have been sufficiently and comprehensibly
established. The [first-instance court] based its findings on the report drawn
up by the ballistics expert V.M. and, after the assessment of the relevant
witness statements, it set out in detail its conclusion that the accused had
caused the conflict. Therefore, the argument of self-defence raised in the
appeal is not correct because, under the relevant case-law, the person who
first drew a gun cannot invoke the defence of self-defence. We also find that
sufficient reasons have been given as to the existence of all the elements of
the offence, as regards the victims A.P. and M.V., as the accused’s mens rea.
The exact place from which he shot the gun was also established without any
doubt.
As to the fact that the victim - a policeman [by profession] -
also had a gun, we consider that this has no bearing on the factual findings
set out in the [first-instance] judgment. This is because no bullets fired from
the [victim’s] gun were found in the nightclub, but only one unfired bullet.
Therefore, the appellant’s argument that the victim fired his gun is
unsupported by the personal and physical evidence. In this connection it is
also to be noted that all the relevant facts, other than the statements of the
victims and the other witnesses unrelated to the accused Zajko Zahirović,
are supported by a 3D reconstruction [of the crime scene] and the report of the
ballistics expert M.
Against the above background we propose that the appeal by the
State Attorney’s Office be allowed and the appeal lodged by the defence be
dismissed as ill-founded.”
On 22 March 2010 the Supreme Court informed the
parties that a public hearing would be held on 20 April 2010. The applicant’s
defence lawyer, who had represented him throughout the proceedings, was invited
to attend but it was expressly stated that the applicant, who in the meantime
had been remanded in pre-trial detention until the judgment became final, was
not to attend.
On 20 April 2010 the Supreme Court held a public
hearing in the presence of the applicant’s defence lawyer and the Deputy State
Attorney of the Republic of Croatia (Zamjenik Glavnog državnog odvjetnika
Republike Hrvatske).
At the appeal hearing the applicant’s defence
lawyer reiterated the arguments set out in his appeal and the Deputy State
Attorney of the Republic of Croatia endorsed the arguments set out in the
opinion of 16 March 2010 (see paragraph 16 above). The relevant part of
the summary record of the appeal hearing reads:
“With the permission of the President, the ... defendant gave
the necessary explanations for his submissions, in particular: The
defence counsel reiterated the appeal submissions.
The Deputy State Attorney of the Republic of Croatia stated
that he endorsed the proposal submitted under Article 373 § 2 of the Code of
Criminal Procedure, ...
After that, at 10 a.m., the President decided
that the part of the session at which the parties were allowed to be present
had concluded and that the decision which the panel would adopt in the course
of the session would be made available to all interested parties by means of
the delivery of a certified copy of the decision through the first-instance
court.”
On the same day the Supreme Court adopted a
judgment in which it upheld the applicant’s conviction and increased his
sentence to eight years’ imprisonment. The relevant part of the judgment reads:
“The Deputy State Attorney of the Republic of Croatia, after
consulting the case file ... in a reasoned opinion of 16 March 2010 ... asked
for the appeal lodged by the State Attorney’s Office to be allowed and the
appeal lodged by the accused to be dismissed.
...
The accused Zajko Zahirović, in his appeal ... asked to be
invited together with his defence lawyer ... to the hearing before the appeal
court. The request as regards the defence lawyer has been complied with ...,
whereas the appeal court has not found it useful to have the accused brought from
pre-trial detention ...
...
The mere fact that the president of the trial panel had ruled
on the appellant’s pre-trial detention is not a reason for excluding that judge
from the trial ... Since the appellant failed to substantiate any circumstances
which could raise doubts as to the impartiality of the president of the trial
panel, his argument appears ill-founded.
...
The appeal lodged by the State Attorney’s Office concerning the
sentence is well founded ...
The first-instance court ... treated as mitigating
circumstances the appellant’s decent behaviour in court, his relative youth,
his lack of previous convictions, the fact that he was unemployed, had no
assets and was a father of three minor children, one of whom was seriously
disabled, and the fact that he was charged with attempting to commit criminal
offences. His exceptional determination and criminal resolve, as manifested in
committing three criminal offences putting life and limb at risk, were assessed
as aggravating circumstances.
Contrary to the criminal offences committed to the detriment of
A.P. and M.V., where no harm occurred - which is an additional mitigating
factor that, together with other mitigating factors, could have led to the
application of the rules on applying a more lenient penalty - the criminal
offence committed to the detriment of K.G. resulted in grave consequences since
he sustained serious and life-endangering wounds to his vital organs in his
twenty-seventh year and at the peak of his career, which was then interrupted
by long-term treatment and rehabilitation, although he had not contributed in
any significant manner [to the situation], which amounts to an additional aggravating
factor. The [appellant’s] behaviour after the commission of the criminal
offences, as rightly pointed out in the appeal lodged by the State Attorney’s
Office, namely that he escaped to another country, together with the lack of
any remorse or apology to the victims, amount to additional aggravating
circumstances which indicate that the rules on imposing a more lenient penalty
should not have been applied in respect of that criminal offence.”
On 31 May 2010 the applicant lodged a
constitutional complaint with the Constitutional Court (Ustavni sud
Republike Hrvatske), arguing that his right to a fair trial had been
violated, inter alia, because of the lack of impartiality of Judge M.G.;
because the submissions of the Deputy State Attorney of the Republic of Croatia
to the Supreme Court had not been communicated to him; and because the Supreme
Court had not examined him prior to increasing his sentence.
On 23 March 2011 the Constitutional Court dismissed
the applicant’s constitutional complaint as ill-founded, endorsing the
reasoning of the lower courts. The decision of the Constitutional Court was
served on the applicant on 4 April 2011.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant domestic law
1. Constitution of the Republic of Croatia
The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990,
135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010,
85/2010) read as follows:
Article 29
“In the determination of his rights and obligations or of any
criminal charge against him, everyone is entitled to a fair hearing within a
reasonable time by an independent and impartial court established by law.
In the case of suspicion of a criminal offence or criminal charges
[being brought], the suspect, defendant or accused shall have the right:
...
- to defend himself in person or with the assistance of a
defence lawyer of his own choosing, and if he does not have sufficient means to
pay for legal assistance, to be given it free as provided by law;
- to be tried in his presence, provided that he is available to
the court;
...”
2. Criminal Code
The relevant parts of the Criminal Code (Kazneni
zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001)
provide:
ATTEMPT TO COMMIT AN OFFENCE
Article 33
“(1) Anyone who intentionally begins to commit an
offence but does not finish it shall be punished for an attempted offence if
the offence at issue is punishable by a sentence of imprisonment of five years
or more or, for any other offence, if the law provides that such an attempt
shall be punished.
(2) A perpetrator who attempted to commit an offence
shall be punished as if the offence had been committed but may be also punished
by a more lenient sentence.
...”
MURDER
Article 90
“Anyone who deprives another of his life shall be punished by a
sentence of imprisonment of at least five years.”
3. Code of Criminal Procedure
At the material time, the relevant provisions of
the Code of Criminal Procedure (Zakon o
kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999,
112/1999, 58/2002 and 62/2003) provided:
CHAPTER II - COMPETENCE OF THE COURTS
1. Jurisdiction and composition of the courts
Article 16
“1. The municipal courts, county courts and the
Supreme Court shall have competence in criminal matters.
...”
Article 20
“The Supreme Court shall be competent:
(1) to decide as the second-instance court on
appeals lodged against decisions of the county courts;
...”
CHAPTER III - DISQUALIFICATION
Article 36
“1. A judge or lay judge shall be excluded from
sitting in a case:
(1) if he has been injured by the offence;
(2) if he is the spouse, a relative by blood, either
lineal, descending or ascending, or collateral to the fourth degree, or related
by affinity to the second degree, to the defendant, his counsel, the
prosecutor, the injured person, their legal guardian or legal representative;
(3) if he is a legal guardian, ward, adopted child or
adoptive parent, foster parent or foster child to the defendant, his counsel,
the prosecutor or the injured person;
(4) if in the same criminal case he has carried out
actions during the investigation, or has taken part in deciding on an objection
to the indictment, or if he has taken part in the proceedings as a prosecutor,
defence counsel, legal guardian or legal representative of the injured person
or the prosecutor, or if he has testified as a witness or as an expert witness;
(5) if in the same case he has taken part in
adopting the decision of a lower court or in adopting a decision of the same
court being challenged by means of an appeal or extraordinary remedy.
2. A judge or lay judge may be recused in a
particular case if it has been argued and proved that there are circumstances
other than those listed in the previous paragraph which call his impartiality
into doubt.”
Article 37
“1. A judge or lay judge, as soon as he discovers a
ground for exclusion referred to in Article 36, paragraph 1, of this Code,
shall discontinue all activity on the case and report the matter to the
president of the court, who shall appoint a substitute judge. ...
2. If a judge or lay judge holds that other
circumstances exist which would justify his standing down (Article 36,
paragraph 2), he shall inform the president of the court thereof.”
Article 38
“1. Disqualification of a judge may also be
requested by the parties.
2. The parties may lodge their request for
disqualification before the opening of the trial, and if they learn at a later
stage of a reason for the judge’s exclusion (Article 36, paragraph 1), they
shall submit their request immediately after they have learned of that reason.”
CHAPTER XXIV - ORDINARY LEGAL REMEDIES
1. Appeal against the first-instance judgment
(c) Grounds on which a judgment can be challenged
Article 366
“A judgment can be challenged:
(1) for a procedural miscarriage of justice;
(2) for a violation of the Criminal Code;
(3) for any error of fact;
(4) in respect of any sanction, confiscation of the
proceeds of crime, costs and expenses ordered or any civil claim lodged in the
criminal proceedings, and in respect of the decision to publish the judgment.”
(d) Appeal proceedings
Article 371
“1. An appeal shall be lodged with the first-instance
court in a sufficient number of copies for the court, the opposing party and
the defence counsel to reply thereto.
...”
Article 372
“The first-instance court shall forward a copy of the appeal to
the opposing party, which may submit a reply. The appeal together with all the
files shall be forwarded by the first-instance court to the second-instance
court, which shall also take into account any reply to the appeal received
before its session begins.
Article 373
“1. When the second-instance court receives the
files, the president of the appeal panel shall assign a reporting judge. If the
case concerns an offence which is subject to public prosecution, the reporting
judge shall forward the case file to the competent State Attorney, who shall examine
it and then return it to the court without delay.
2. When the State Attorney returns the case file,
the president of the panel shall schedule the session of the panel. The State
Attorney shall be notified of the session.
...”
Article 374
“1. The accused and his defence counsel and any
subsidiary prosecutor or private prosecutor who, within the time-limit for
appealing or replying to an appeal, have requested to be notified of the
session or have proposed that a trial be held before the appellate court, shall
be notified of the session. The president of the panel, or the panel, may
decide that the parties should be notified of the session, even if they have
not so requested, if their presence would be useful for the clarification of
the case.
2. If the accused is in pre-trial detention or is
serving a sentence [of imprisonment] and has defence counsel, his presence
shall be ensured only if the president of the panel, or the panel, considers it
expedient.
3. The session of the panel shall begin with the
report by the reporting judge on the facts of the case. The panel may request
such explanations as are necessary from the parties present at the session
concerning the appeal submissions. The parties may propose that certain files
be read out in order to supplement the report and may, subject to the approval
of the president of the panel, give such explanations as are necessary of the
positions stated in their appeal or their reply to the appeal, without
repeating the contents of the report.
...”
(e) Scope of the review
Article 379
“1. The second-instance court shall examine the
first-instance judgment in the part and on the grounds referred to in the
appeal (Article 366).
...”
(f) Decision of the second-instance court on
appeal
Article 384
“1. The second-instance court may, after a session
of the appeal panel or after a trial, reject the appeal as being lodged out of
time or as being inadmissible, or dismiss the appeal as ill-founded and uphold
the first-instance judgment, or quash the first-instance court’s judgment and
remit the case to it for a retrial, or reverse the first-instance judgment.
...”
B. Relevant domestic practice
In case no. I Kir-163/10, concerning a criminal
investigation in connection with a suspicion of offences of forgery of official
documents under Article 312 of the Criminal Code, on 11 February 2011 the
President of the Split County Court (Županijski sud u Splitu), further
to a request by the defence, excluded a judge, M.P., from the case. He found
that, although the request for exclusion of the judge had been highly vague,
the judge had to be excluded in order to avoid any doubt as to his
impartiality. Judge M.P. himself rejected any objection as to his impartiality
but shared the view that he should be excluded to avoid any such objection from
the defence.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c)
OF THE CONVENTION
The applicant complained that he had not had a
fair trial. He alleged in particular:
(i) that the trial court had lacked impartiality in
that Judge M.G., who had been the president of the trial panel which had
convicted him, had also participated in the panel which had extended his
pre-trial detention;
(ii) that the principle of equality of arms had been
violated in that the submissions of the State Attorney’s Office of the Republic
of Croatia to the Supreme Court had not been communicated to the defence; and
(iii) that he had not been allowed to be present at
the appeal hearing before the Supreme Court.
The applicant relied on Article 6 §§ 1 and 3 (c) of the
Convention, which, in so far as relevant, reads as follows:
“1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an ... impartial
tribunal established by law. ...
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;
...”
A. Alleged lack of impartiality of the trial court
1. The parties’ arguments
The applicant submitted that Judge M.G., who had
been the president of the trial panel of the Zagreb County Court which had
convicted him and sentenced him to six years’ imprisonment, had also been part
of a three-judge panel of the same court which had on 2 September 2004 extended
his pre-trial detention in a decision worded in a manner that had expressed the
judge’s prejudice as to the applicant’s personality and propensity to commit
criminal offences. Therefore, in the applicant’s view, the fact that Judge M.G.
had been the president of the trial panel which had convicted him had violated
his right to a fair trial before an impartial tribunal. The applicant also
stressed that he had never asked for Judge M.G. to be disqualified because he
had considered that that would not have been an effective avenue to pursue in
his case.
The Government argued that the applicant had
failed to exhaust the available and effective domestic remedies in that he had
never requested the disqualification of Judge M.G. from sitting in his case. The
Government pointed out that, at the time when the applicant’s case had been
reassigned to Judge M.G., the applicant had been sufficiently aware that the
same judge had participated in his case as a member of a three-judge panel
which had extended his pre-trial detention. Therefore, had he considered that
Judge M.G. had formed an opinion as to the charges against him, the applicant
could have requested the President of the Zagreb County Court to exclude Judge
M.G. from sitting in his case. However, the applicant had never raised any
complaints as to Judge M.G.’s lack of impartiality or the composition of the
trial panel during the first-instance proceedings, although he and his defence
lawyer had been present at all hearings. Instead, more than one year after
Judge M.G. had assumed responsibility for his case, in his appeal against the
first-instance judgment the applicant had raised for the first time his
complaints concerning Judge M.G.’s alleged lack of impartiality. The Government
also submitted that there had not been any ascertainable facts which could have
raised doubts as to Judge M.G.’s impartiality and that the issues examined when
extending the applicant’s pre-trial detention had been different from those
examined in relation to the merits of the charges against him.
2. The Court’s assessment
The Court considers that it is not necessary to
address all the Government’s objections since this complaint is in any event
inadmissible for the following reasons.
The Court notes that Judge M.G. was a member of
a three-judge panel of the Zagreb County Court which on 2 September 2004
extended the applicant’s pre-trial detention (see paragraph 9 above). The same
judge was a member of a three-judge panel of the same court which on 28 April
2006 ordered the applicant’s release from detention (see paragraph 10 above).
The applicant never argued that these decisions had not been served on him or
that he had been unaware of the composition of the panels which had decided on
his detention. Moreover, on both occasions he was represented by the same
lawyer who represented him as defence counsel during his trial before the
Zagreb County Court.
The Court further notes that when the applicant’s
case was sent for trial on 24 June 2004, Judge Z.K. assumed responsibility for
the case as president of the trial panel. However, owing to that judge’s
appointment to a position as a judge of the Supreme Court, on 16 September 2008
the Vice-President of the Criminal Division of the Zagreb County Court assigned
the applicant’s case to Judge M.G.
The trial in the applicant’s case ended on 27
November 2009 and the trial panel, presided over by Judge M.G., found the
applicant guilty of attempted murder and sentenced him to six years’
imprisonment. It is undisputed between the parties that during the period of
more than one year in which the applicant’s trial was conducted before the
panel presided over by Judge M.G., he never lodged any complaints alleging a
lack of impartiality on the part of that judge or otherwise concerning the
composition of the trial court, even though he and his defence lawyer, as noted
above, were aware of Judge M.G.’s previous involvement in his case. The
applicant raised the complaint concerning that judge’s alleged lack of
impartiality for the first time in his appeal lodged with the Supreme Court on
16 February 2010 against the first-instance judgment that had been unfavourable
to him.
In view of the relevant domestic law and
practice (see paragraphs 25 and 26 above), the Court sees no reason why the
applicant could not have submitted a request for Judge M.G. to be disqualified
when that judge assumed responsibility for his case on 16 September 2008.
Moreover, the applicant never argued that he had been prevented from making
such a request or from otherwise complaining about the composition of the trial
panel during the period of more than one year while the proceedings were
pending before the trial panel presided over by Judge M.G. The applicant’s mere
doubts as to the effectiveness of a request for the disqualification of judges
did not dispense him from trying to pursue this avenue.
In this connection the Court has held that the
existence of national procedures for ensuring impartiality, namely rules
regulating the withdrawal of judges, are a relevant factor. Such rules manifest
the national legislature’s concern to remove all reasonable doubts as to the
impartiality of the judge or court concerned and constitute an attempt to
ensure impartiality by eliminating the causes for such concerns (see Mežnarić
v. Croatia, no. 71615/01, § 27, 15 July 2005). Therefore, the Court
considers that when the domestic law offers a possibility of eliminating the
causes for concerns regarding the impartiality of the court or a judge (see
paragraph 25; Articles 36 and 38 of the Code of Criminal Procedure), it
would be expected (and in terms of the national law required) of an applicant
who truly believes that there are arguable concerns on that account to raise
them at the first opportunity. This would above all allow the domestic
authorities to examine the applicant’s complaints at the relevant time and
ensure that his rights are respected.
In the present case, however, the applicant
failed to use the opportunity to submit his complaints about the composition of
the trial court or Judge M.G.’s alleged lack of impartiality at the trial stage
of the proceedings. Therefore, owing to that failure, the Court is not able to
conclude that the alleged procedural defect complained of interfered with the
applicant’s right to a fair trial (see, mutatis mutandis, Ferenčić-Stoilova
v. Croatia (dec.), no. 33277/06, 13 March 2008; LB Interfinanz A.G.
v. Croatia, no. 29549/04, §§ 33-34, 27 March 2008; and Trubić
v. Croatia (dec.), no. 44887/10, § 32, 2 October 2012).
It follows, in line with the above cited
case-law, that this complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Alleged violation of the principle of equality of
arms as regards the submissions of the State Attorney’s Office of the Republic
of Croatia
1. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) and 4 of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
2. Merits
(a) The parties’ arguments
The applicant contended that the principles of
equality of arms and adversarial proceedings required the submissions of the
prosecution to be forwarded to the defence, who then had discretion to choose
whether to reply to them or not. In the applicant’s view, the relevant domestic
law was deficient as no provision was made for forwarding the opinion of the
immediately superior State Attorney’s Office - in the present case, the State
Attorney’s Office of the Republic of Croatia - to the defence to allow them,
should they so wish, to reply to the opinion before the second-instance
decision was adopted.
The absence of such a possibility in the Code of
Criminal Procedure, in the applicant’s submission, had nothing to do with the
State Attorney’s rules on subordination, but was a legacy of the old “socialist
approach” to criminal procedure in which equality of arms had not been
recognised. The applicant also stressed that it was necessary to make a
distinction between the issue of whether he had replied to the appeal lodged by
the Zagreb County State Attorney’s Office or not, and the issue of whether he
had had the opportunity to have knowledge of and to reply to the opinion of the
State Attorney’s Office of the Republic of Croatia, since they concerned two
separate procedural situations.
The Government argued that the mere fact that
one submission of the State Attorney’s Office had not been communicated to the
defence could not have had any bearing on the overall fairness of the
proceedings. In the Government’s view, the fact that the Code of Criminal Procedure
had required that, during appeal proceedings, the case file be forwarded to the
State Attorney’s Office at the level immediately above the one representing the
prosecution in the proceedings at issue had essentially benefited the accused
since this had allowed the higher State Attorney’s Office to supervise the work
of the lower office and, if necessary, to withdraw the appeal. Nothing in
domestic law had obliged the State Attorney’s Office to submit an opinion at
all, but it was normally expected that the case file would be returned to the
court accompanied by a letter. In the present case, the letter from the State
Attorney’s Office of the Republic of Croatia had simply endorsed the arguments
set out in the appeal lodged by the Zagreb County State Attorney’s Office and
had proposed that the appeal lodged by the defence be dismissed. Therefore,
there had been no reason to communicate the submissions in question to the
defence. Moreover, domestic law had not provided for such an obligation. In
this connection the Government pointed out that the main arguments for the
prosecution had been raised in the appeal lodged by the Zagreb County State
Attorney’s Office and that the applicant had not replied to that appeal.
(b) The Court’s assessment
(i) General principles
The Court reiterates that the principle of
equality of arms is one feature of the wider concept of a fair trial, which
also includes the fundamental right that criminal proceedings should be
adversarial. The right to an adversarial trial means, in a criminal case, that
both prosecution and defence must be given the opportunity to have knowledge of
and comment on the observations filed and the evidence adduced by the other
party. Various ways are conceivable in which national law may meet this
requirement. However, whatever method is chosen, it should ensure that the
other party will be aware that observations have been filed and will have a
real opportunity to comment on them (see Brandstetter v. Austria,
28 August 1991, §§ 66-67, Series A no. 211; Milatová and Others
v. the Czech Republic, no. 61811/00, § 65, ECHR 2005-V; and,
a fortiori, Krčmář and Others v. the Czech Republic, no. 35376/97, §§ 41-45, 3 March 2000; and OAO Neftyanaya Kompaniya
Yukos v. Russia, no. 14902/04, § 538, 20 September 2011). Therefore, it is even possible
that a procedural situation which does not place a party at any disadvantage vis-ŕ-vis
his or her opponent still represents a violation of the right to adversarial
proceedings if the party concerned did not have an opportunity to have
knowledge of, and comment on, all evidence adduced or observations filed, with
a view to influencing the court’s decision (see Krčmář and Others,
cited above, §§ 38-46; and Gregačević v. Croatia, no. 58331/09, § 50, 10 July 2012).
As regards the contents of submissions filed by
the prosecution, 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 Bulut v. Austria, 22 February
1996, § 49, Reports of Judgments and Decisions 1996-II, and Josef
Fischer v. Austria, no. 33382/96, § 19, 17 January 2002).
(ii) Application of these principles to the present
case
The Court notes that after the parties to the
proceedings before the Zagreb County Court, namely the applicant and the Zagreb
County State Attorney’s Office, had lodged their appeals against the
first-instance judgment with the Supreme Court, these appeals, together with
the Zagreb County Court’s case file, were forwarded to the State Attorney’s
Office of the Republic of Croatia for examination, under Article 373 § 1 of the
Code of Criminal Procedure.
After the examination of the case file, the
State Attorney’s Office of the Republic of Croatia returned it to the Supreme
Court together with written observations on the substantive and procedural
issues raised by the parties in their appeals. The Supreme Court specifically
endorsed the opinion of the State Attorney’s Office of the Republic of Croatia that the applicant’s appeal should be dismissed and the appeal lodged by
the Zagreb County State Attorney’s Office allowed. This opinion was
substantiated by an analysis of the procedure, relevant case-law and the facts
of the case.
The Court further observes that the above
opinion of the State Attorney’s Office of the Republic of Croatia was taken
into account by the Supreme Court when adopting the second-instance judgment.
Moreover, the Supreme Court appears to have accepted the proposal made by the
State Attorney’s Office of the Republic of Croatia since it dismissed the
applicant’s appeal in respect of all his complaints and reversed the
first-instance judgment by increasing his sentence from six to eight years’ imprisonment,
thus endorsing the arguments raised in the appeal of the Zagreb County State
Attorney’s Office and the written opinion of the State Attorney’s Office of the
Republic of Croatia (see paragraphs 13, 16 and 20 above).
At the same time, however, the above opinion of
the State Attorney’s Office of the Republic of Croatia was never communicated
to the defence, nor did the defence have any knowledge of the opinion or any
opportunity to reply to it before judgment was given (compare Lobo Machado
v. Portugal, 20 February 1996, § 31, Reports 1996-I). The
Court is aware that under the relevant domestic law there was no obligation to
forward the opinion of the State Attorney’s Office of the Republic of Croatia to the applicant, but it cannot see the justification for such restrictions on the
rights of the defence. Once the submissions unfavourable to the applicant had
been made, the latter had a clear interest in being able to submit his
observations on them before argument was closed. This is particularly so since
the Supreme Court’s jurisdiction embraced both questions of fact and questions
of law (see Borgers v. Belgium, 30 October 1991, § 27, Series A no. 214-B).
As to the Government’s argument that only one
submission of the State Attorney’s Office had not been communicated to the
defence, the Court would reiterate that since the observations in question
constituted reasoned opinions on the merits of the applicant’s case, manifestly
aiming to influence the Supreme Court’s decision by calling for the appeal to
be dismissed, and in view of the nature of the issues to be decided by the
Supreme Court, it does not need to determine whether the omission to
communicate the relevant document caused the applicant prejudice; the existence
of a violation is conceivable even in the absence of prejudice (see Adolf v.
Austria, 26 March 1982, § 37, Series A no. 49, and Milatová and Others,
cited above, § 65). That being so, it is equally irrelevant whether or not the
applicant replied to an earlier submission, namely the appeal of the Zagreb
County State Attorney’s Office. This is because, as emphasised many times
already, it is for the applicant to judge whether or not a document calls for
comment on his part (see Nideröst-Huber v. Switzerland, 18 February
1997, § 29, Reports 1997-I). The onus was therefore on the Supreme
Court to afford the applicant an opportunity to comment on the written observations
of the State Attorney’s Office of the Republic of Croatia prior to its decision
(see Milatová and Others, cited above, § 65, and Göç v. Turkey [GC], no. 36590/97, § 57, ECHR 2002-V).
Against 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 proceedings at issue (see Bulut,
cited above, § 49; and Josef Fischer, cited above, § 21; and
compare Brandstetter, §§ 67-68, cited above).
There has accordingly been a violation of
Article 6 § 1 of the Convention.
C. The applicant’s absence from the appeal hearing
before the Supreme Court
1. Admissibility
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) and 4 of the Convention.
It further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
(a) The
parties’ arguments
The applicant submitted that he had not been
allowed to attend the appeal hearing before the Supreme Court despite the fact
that that court had examined the merits of the case as regards both questions
of fact and questions of law and had also increased his sentence by almost
one-third, namely from six to eight years’ imprisonment. He pointed out that
the domestic courts had never defined the term “expedient” within the meaning
of Article 374 § 2 of the Code of Criminal Procedure, as regards the presence
of the accused at the appeal hearing. Therefore, in view of the fact that the
Supreme Court in his case had acted as a court with full jurisdiction, he had
had a right, by virtue of Article 6 §§ 1 and 3 (c) of the Convention, to be
present at the appeal hearing. The applicant considered that this was all the
more so since the Supreme Court had been called upon to examine his sentence,
which had been a particularly important aspect of the case. Lastly, he pointed
out that the fact that he had been represented by counsel at the appeal hearing
had had no influence on his right to attend that hearing.
The Government argued that under the relevant
domestic law the Supreme Court had discretion to decide whether it was
expedient to allow an accused who was in detention and was represented by a
lawyer to attend an appeal hearing in person; that had been the situation in
the present case. The Government pointed out that throughout the first-instance
proceedings, in which he had duly participated, the applicant had been
represented by a lawyer and that in his appeal against the first-instance
judgment he had simply reiterated the arguments raised in his defence before
the first-instance court, whereas he had not replied to the appeal lodged
by the Zagreb State Attorney’s Office. Moreover, the applicant’s lawyer had not
put forward any other arguments at the appeal hearing but had merely reiterated
the arguments already raised in the appeal. Therefore, the Government submitted
that in such circumstances the Supreme Court had correctly held that there had
been no reason for the applicant to attend the appeal hearing. In the
Government’s view this had been consonant with the Court’s case-law and with
the requirement of the overall fairness of the proceedings, an issue that had
also been examined by the Constitutional Court, which had not found a violation
of the applicant’s defence rights.
(b) The Court’s assessment
(i) General principles
The Court reiterates that a person charged with
a criminal offence should, as a general principle based on the notion of a fair
trial, be entitled to be present at the first-instance hearing (see Hermi v.
Italy [GC], no. 18114/02, §§ 58-59 ECHR 2006-XII). However, the
personal attendance of the defendant does not take on the same crucial significance
for an appeal hearing as it does for the trial hearing (see Kamasinski v. Austria,
19 December 1989, § 106, Series A no. 168). The manner in which Article 6
applies to proceedings before courts of appeal depends on the special features
of the proceedings involved; account must be taken of the entirety of the
proceedings in the domestic legal order and of the role of the appellate court
therein (see Ekbatani v. Sweden, 26 May 1988, § 27, Series A no.
134, and Monnell and Morris v. the United Kingdom, 2 March 1987, § 56,
Series A no. 115).
In assessing the question whether the applicant’s
presence was required at the hearing before the court of appeal, regard must be
had, among other considerations, to the specific features of the proceedings in
question and to the manner in which the applicant’s interests were actually
presented and protected before the appellate court, particularly in the light
of the nature of the issues to be decided by it (see Helmers v. Sweden,
29 October 1991, §§ 31-32, Series A no. 212-A) and of their
importance to the appellant (see Ekbatani, cited above, §§ 27-28; Kamasinski,
cited above, § 106 in fine; Kremzow v. Austria, 21 September
1993, § 59, Series A no. 268-B; and Hermi, cited above, §
62).
However, where an appellate court has to examine
a case as to the facts and the law and make a full assessment of the issue of
guilt or innocence, it cannot determine the issue without a direct assessment
of the evidence given in person by the accused for the purpose of proving that
he did not commit the act allegedly constituting a criminal offence (see Dondarini
v. San Marino, no. 50545/99, § 27, 6 July 2004).
Likewise, where the appellate court is called
upon to examine whether the applicant’s sentence should be increased and when
the appeal proceedings are capable of raising issues including such matters as
the applicant’s personality and character, which makes such proceedings of
crucial importance for the applicant since their outcome could be of major
detriment to him, the Court considers that the appellate court cannot examine
the case properly without having heard the applicant directly and gaining a
personal impression of him (see Kremzow, cited above, § 67; Cooke v. Austria, no. 25878/94, § 42, 8 February 2000; Hermi, cited above, § 67; and
Talabér v. Hungary, no. 37376/05, §
28, 29 September 2009).
(ii) Application of these principles to the present
case
The Court notes that the Croatian criminal
justice system is organised as a system of municipal and county courts and the
Supreme Court, each of these instances vested with a certain scope of
jurisdiction (see paragraph 25 above; Article 16 and 20 of the Code of Criminal
Procedure). In the present case the Zagreb County Court acted as the court of
first instance after the Zagreb County State Attorney’s Office had indicted the
applicant on charges of putting life and limb at risk and attempted murder.
Following the judgment adopted at first instance by the Zagreb County Court,
the parties had the possibility of lodging an appeal on questions of both law
and fact with the Supreme Court, which, in that eventuality, was competent as a
second-instance court to examine all aspects of the case, including the issue
of the applicant’s guilt and sentence.
Thus, when the Zagreb County State Attorney’s
Office lodged its appeal on 2 February 2010, seeking a higher sentence for the
applicant (see paragraph 13 above), and the applicant lodged his appeal on 16
February 2010 alleging numerous substantive and procedural flaws in the
first-instance judgment (see paragraph 14 above), the Supreme Court was called
upon to act as a second-instance court. In that capacity, it was competent to
decide on all the complaints raised in the appeal (see paragraph 25; Article 379
§ 1 of the Code of Criminal Procedure), and as a consequence, under Article 384
§ 1 of the Code of Criminal Procedure (see paragraph 25 above), it could
uphold, quash or reverse the first-instance judgment and increase or decrease
the sentence imposed by the trial court.
The Court observes that under the relevant
domestic law in the appeal proceedings, in cases subject to public prosecution,
the entire case file and the parties’ submissions must be forwarded to the
State Attorney’s Office at the level immediately above the office conducting
the prosecution in the proceedings, in this case the State Attorney’s Office of
the Republic of Croatia (see paragraph 25; Article 373 § 1 of the Code of
Criminal Procedure), and the State Attorney’s Office must be notified of the
session of the appeal panel (see paragraph 25; Article 373 § 2 of the Code of
Criminal Procedure). As regards the other parties, namely the accused and his
defence counsel, the Supreme Court was obliged to notify them of the appeal
session only if they had so requested or if the Supreme Court considered it
necessary (see paragraph 25; Article 374 § 1 of the Code of Criminal
Procedure). In addition, the domestic law provides that if the accused is in
detention, the president of the appeal panel may ensure his presence only if he
considers it to be expedient (see paragraph 25; Article 374 § 2 of the
Code of Criminal Procedure).
In the present case the Supreme Court informed
the parties on 22 March 2010 of the date of the appeal hearing and invited
the defence lawyer to attend but expressly stated that the applicant was not to
be present (see paragraph 17 above). At the same time, the Supreme Court had
been requested by the prosecution to examine in the appeal proceedings whether
the applicant’s sentence should be increased, and by the defence to make a full
assessment of the facts and the legal issues of the case. The Supreme Court,
after examining all the facts and legal issues raised by the parties, answered
the prosecution’s request in the affirmative and reversed the first-instance
judgment, sentencing the applicant to eight years’ imprisonment and thus
increasing his sentence by two years (compare Kremzow, cited above, and
contrast Hermi, cited above, § 86).
In its reasoning, the Supreme Court, inter
alia, referred to the applicant’s “behaviour after the commission of the
criminal offences ..., [the fact] that he escaped to another country, together
with the lack of any remorse or apology to the victims” and found that these
amounted to additional aggravating circumstances (see paragraph 20 above).
However, the Supreme Court did not ever see the applicant in person or hear his
arguments and was thus unable to make a proper assessment of these issues,
particularly the lack of any remorse or apology by the applicant or the
possible reason why he had left for another country. The Court considers that,
notwithstanding the Government’s argument that under the domestic law, the
appellate court had discretion to decide whether to afford the applicant an
opportunity to be present at the appeal hearing, these are all issues on which,
as a matter of fairness, he should have been heard in person (see Cani v.
Albania, no. 11006/06, §
63, 6 March 2012). Therefore, the Government’s argument that the applicant was
represented by a lawyer at the appeal hearing is of no significance since the
Court has already held that, in circumstances
such as those of the present case, where evaluations of this kind were to play
such a significant role and where their outcome could be of major detriment to
the applicant, it was essential for the fairness of the proceedings for him to
be present during the hearing of the appeal and afforded the opportunity to
participate in it together with his counsel (see Kremzow, cited above, §
67).
Against the above background, having regard to
the fact that the Supreme Court, as the second-instance court, had jurisdiction
to review the case both as to the facts and as to the law, and in the light of
the nature of the issues it was called upon to examine, particularly given
their importance to the applicant, the Court considers that the applicant ought
to have been able “to defend himself in person” as required by Article 6 § 3
(c) of the Convention. Accordingly, in such circumstances, the Supreme Court
was under a duty to ensure the applicant’s presence at the appeal hearing,
which it failed to do.
Therefore, the Court finds that there has been a
violation of Article 6 §§ 1 and 3 (c) of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained, invoking
Article 6 of the Convention, that the decisions of the domestic courts had not
been sufficiently reasoned, and, under Article 14 of the Convention and
Article 1 of Protocol No. 12, that he had been discriminated against.
However, he did not substantiate these complaints any further.
In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court considers that this part of the application does not
disclose any appearance of a violation of the Convention. It follows that it is
inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected
pursuant to Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The applicant claimed 5,000 euros (EUR) in
respect of non-pecuniary damage.
The Government considered the applicant’s claim
unfounded and unsubstantiated.
Having regard 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.
B. Costs and expenses
The applicant also claimed EUR 1,804 for the
costs and expenses incurred before the domestic courts and EUR 1,873 for those
incurred before the Court.
The Government argued that the applicant had failed
to substantiate his claim for costs and expenses.
73. 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. As to the proceedings instituted by the applicant
before the national authorities, the Court agrees that, as they were in part
aimed at remedying the violation of the Convention alleged before the Court,
the domestic legal costs may be taken into account in assessing the claim for
costs (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 284, ECHR 2006-V). However,
the Court notes that part of the applicant’s complaints, concerning the alleged
lack of impartiality of the trial court, was declared inadmissible (see
paragraph 37). Therefore, no award can be made in respect of the costs and
expenses incurred in connection with that complaint. Accordingly, regard being
had to the information in its possession and the above criteria, the Court
awards the applicant the sum of EUR 1,200 for costs and expenses in the
proceedings before the national authorities, plus any tax that may be
chargeable to him on that amount. As to the Convention proceedings, making its
assessment on an equitable basis and in the light of its practice in comparable
cases, the Court considers it reasonable to award the applicant, who was represented
by counsel, the sum of EUR 1,873, plus any tax that may be chargeable to him on
that amount.
C. Default interest
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 complaints concerning the
alleged violation of the principle of equality of arms and the applicant’s
absence from the appeal hearing before the Supreme Court admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the breach of the principle of
equality of arms resulting from the failure to forward the opinion of the State
Attorney’s Office of the Republic of Croatia to the applicant;
3. Holds that there has been a
violation of Article 6 §§ 1 and 3 (c) of the Convention as regards the
applicant’s absence from the appeal hearing before the Supreme Court;
4. Holds
(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 44 § 2 of the Convention, the following
amounts, to be converted into Croatian kunas at the rate applicable at the date
of settlement:
(i) EUR 1,500 (one thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,073 (three thousand six hundred and
seventy-seven 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;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 25 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen Isabelle Berro-Lefčvre
Registrar President
