Sanction for threatening a governor for 6 months with suspension. The sentence was disproportionate as the plaintiff’s wish for non-punishment of the accused was not taken into account!
JUDGMENT
Drača v. Croatia 20.01.2022 (app. no. 55724/19)
SUMMARY
Conviction of the accused without summoning him to the court of appeal. The plaintiff did not want the accused to be prosecuted. Disproportionate penalty. Fair trial.
The applicant, a Croatian national, was charged with the offense of threatening a public official, namely the Governor.
On 13 April 2017 the Zadar Municipal Court found the applicant guilty of the charges and sentenced him to six months’ imprisonment with a two-year suspension for sending a text message to Governor S.Z., threatening to seriously injure him in order to get back the job he had in the past in a museum managed by the Region.
On 1 June 2017 the applicant appealed to the Split court, which, however, rejected and upheld the first-instance decision. The appellate court held a hearing without inviting the parties to a hearing. The decision of the appellate court did not provide any reason to justify the fact that the applicant had not been summoned to appear at his appeal and so on 13 March 2018 the applicant lodged a complaint with the Constitutional Court, arguing, inter alia, that the appellate court did not considered and disregarded his arguments. He also argued that the appellate court should have summoned him to attend the hearing in order to be able to respond to the charges against him. The Constitutional Court declared the constitutional complaint inadmissible on the ground that the applicant had not requested to be summoned to the Court of Appeal and that under the relevant law the appellate court could have summoned him ex officio only if he considered that his presence would be useful for the clarification of the case.
Relying on Article 6 §§ 1 (right to a fair trial) and 3 (c) (optional legal aid) of the ECHR, the applicant complained, in particular, that his right to be heard had been violated.
The Court observed that the appellate court had not reasoned that the applicant had not been summoned to appear on appeal, as this would have removed any doubt as to the applicable procedural law.
In addition, it considered that the sentence imposed on him was disproportionately burdensome as the victim / plaintiff did not want to be punished but this was not taken into account by the national courts.
The ECtHR found a violation of Article 6 §§ 1 and 3 (c) of the ECHR and awarded the applicant EUR 1,500 for non-pecuniary damage.
PROVISIONS
Article 6 par. 1
Artice 6 par. 3
PRINCIPAL FACTS
The applicant, Milan Drača, is a Croatian national who was born in 1975 and lives in Zadar (Croatia).
The case concerns the trial of Mr Drača for the offence of threatening a public official, for which he
received a six-month prison sentence, suspended for two years.
Relying on Article 6 §§ 1 (right to a fair trial) and 3 (c) (right to legal assistance of own choosing) of
the European Convention on Human Rights, the applicant complains, in particular, that the session
of the appeal panel in his case was held in his absence.
THE DECISION OF THE COURT…
The Court firstly notes that, regrettably, the appellate court did not give any reasons as to why it had not invited the applicant to attend the session, as this would have removed any doubts as to the applicable procedural law.
However, the Court notes that at the moment the applicant lodged his appeal against the first-instance judgment (1 June 2017), the relevant provision of the Code of Criminal Procedure provided that if the appellate court was deciding on an appeal against the first-instance judgment rendered for an offence punishable by a fine or up to five years’ imprisonment, the parties would be notified of the session of the appeal panel if they so requested, but only if the trial court pronounced a prison sentence. This provision was deleted from the Code of Criminal Procedure on 27 July 2017, hence almost two months after the applicant had lodged his appeal against the first-instance judgment.
Accordingly, having regard that the applicant received a suspended sentence for an offence punishable by up to five years’ imprisonment, the fact that in his appeal he had not asked to be invited to the session of the appeal panel could not be held against him.
It follows that the present case concerns a historic situation, in which the previous legislation and practice were applicable, and which were meanwhile changed.
The Court further notes that under the legislation in force at the time the applicant lodged his appeal and at the time the appellate court was deciding the case, the appeal panel could have in any event invited the applicant to attend the session, if it considered his presence useful for the clarification of the case.
n that connection 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’s guilt or innocence. It could uphold, quash or reverse the first-instance judgment and increase or decrease the sentence imposed by the trial court (see Mirčetić v. Croatia, no. 30669/15, § 25, 22 April 2021). The Court refers in that regard to its case-law cited in Júlíus Þór Sigurþórsson v. Iceland, no. 38797/17, § 33, 16 July 2019.
The Court notes that in his appeal the applicant contested his conviction and sentence on both factual and legal grounds. The prosecutor submitted a reasoned reply to the issues raised by the applicant and asked to uphold his conviction.
Accordingly, the appellate court was called upon to make a full assessment of the applicant’s guilt or innocence in respect of the charges against him, in the light of not only the arguments that he had raised before the trial court, but also of those concerning the alleged failures of that court to establish all the relevant facts and to apply the relevant law correctly (see Bosak and Others, cited above, § 106; compare Abdulgadirov v. Azerbaijan, no. 24510/06, § 42, 20 June 2013, and Kozlitin v. Russia, no. 17092/04, § 63, 14 November 2013). However, contrary to the requirements of this case-law by the Court, the appellate court held the session without the applicant being present.
Furthermore, the applicant also complained in his appeal that the trial court had imposed an overly severe sentence on him (see paragraph 11 above). The Court notes that the victim stated at the trial that he had not wished to punish anyone , yet this circumstance does not seem to have been taken into account by the domestic courts when setting the applicant’s sanction. Moreover, the appellate court upheld the sentence imposed by the trial court, holding that it was appropriate for the applicant individually. However, the appellate court did not have the benefit of gaining a personal impression of the applicant before reaching that conclusion (compare Zahirović, cited above, § 62).
In the case of Lonić, the Court considered it irrelevant that the appeal against the first‑instance judgment had been lodged only by the applicant. In the Court’s view, that did not affect the principal question brought before the appellate court – namely whether the applicant was guilty or innocent, an issue which, in order for the trial to be fair, had required the applicant’s presence at the session of the appeal panel. For the same reason the Court dismisses the Government’s arguments put forward.
In view of these findings, and having regard to its case-law as set out in the cases of Zahirović, Lonić and Bosak and Others (cited above), the Court finds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
