The non-disclosure of prosecutorial proposals and the procedure in the appellate court in the absence of the accused violated the fair trial.

JUDGMENT

Romić and others v. Croatia 14.05.2020  (no. 22238/13, 30334/13, 38246/13, 57701/13, 62634/14, 52172/15 and 17642/15)

see here  

SUMMARY 

Notification of prosecutorial proposals. Equality of arms and litigation. The applicants were charged with serious misconduct and attempted murder. They were irrevocably convicted. At the trial, they did not have access to the prosecutor’s proposals submitted to the court after the proceedings were initiated and were not summoned to appear at their trial, so they were tried in absentia. The Constitutional Court rejected their appeals on the grounds that the domestic legislation did not provide for the notification of the Prosecutor’s proposals as unfounded for other reasons.

The Court found that domestic law had already repealed the Criminal Procedure Code, which did not provide for the right to disclose prosecutions submitted after the proceedings were initiated, and ruled that because the applicants had been tried under the previous law, the law was violated.

The ECtHR also ruled that the deprivation of the right to self-representation in secondary proceedings and their conviction in absentia violated Articles 6 §§ 1 and 3 (c). Conviction of Croatia for the moral damage of the applicants and the court costs.

PROVISIONS

Article 6§1

Article 6§ 3 (c)

PRINCIPAL FACTS

The applicants in this case are seven Croatian nationals, Josip Romić, Ivan Romić, Željko Vlaškalić,
Želimir Radonić, Zvonimir Dumančić, Željko Severec, and Josip Topalović, who were born in 1960,
1958, 1955, 1960, 1961, 1959, 1981 respectively, and one national of Bosnia and Herzegovina, Darko
Domazet, who was born in 1963. They live in Croatia and Bosnia and Herzegovina.

The case concerned their allegations of unfairness in criminal proceedings brought against them.
All eight applicants were found guilty between 2010 and 2014 of crimes varying from fraud to
attempted murder and given sentences.

When the domestic courts dismissed their appeals and upheld their convictions, they lodged
constitutional complaints. They argued that during the appeal proceedings the submissions of the
State Attorney’s Office in their cases had never been served on the defence and/or that they had not
been given the opportunity to be present at sessions of the appeal panel.

The first and second applicants’ constitutional complaints were dismissed because domestic law did
not require appeal courts to forward State Attorney’s Office submissions to the defence, while all
the other applicants’ complaints were dismissed as unfounded.

Relying on Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance of own choosing) of
the European Convention on Human Rights, the first, second, fourth, fifth, sixth, seventh and eighth
applicants alleged that the principle of equality of arms had been breached in the proceedings
against them because the State Attorney submissions had never been forwarded to them. The third,
fourth, sixth, seventh and eighth applicants complained about the holding of sessions of the appeal
panel in their absence.

THE DECISION OF THE COURT…

The Court firstly notes that it has repeatedly found violations of Article 6 §§ 1 and 3 (c) of the Convention in Croatian cases on account of applicants not being forwarded submissions prepared by the competent State Attorneys Office and not being allowed to be present at sessions of the appeal panel in the criminal proceedings against them.

The Court reiterates that where a violation of Article 6 of the Convention has been found, a retrial or the reopening of the proceedings, if requested, is in principle an appropriate, and often the most appropriate, way of putting an end to the violation and affording redress for its effects. The Court finds no reason to hold otherwise in the circumstances of the present case, where violations of the Convention have been acknowledged by the Government, and where the aim pursued by each of the applicants in their individual applications was the reopening of the criminal proceedings against them. It is therefore necessary to address the question of whether a procedure by which such a reopening can be requested is available to the applicants.

The Court notes that Article 502 § 2 of the Code of Criminal Procedure provides for the possibility of reopening proceedings on the basis of a final judgment of the Court finding a violation of the Convention. It appears that there is currently no case-law from the domestic courts on the question of whether the possibility to reopen criminal proceedings also exists in the event of a decision by the Court approving a unilateral declaration and striking the case out of its list.

Therefore, the Court finds that it cannot be said with a sufficient degree of certainty that the procedure for reopening criminal proceedings would be available were the Court to accept the Governments unilateral declaration and strike the case out of its list. The situation in the present case is thus comparable to that in Dridi and Hakimi v. Belgium. The present case is distinguishable from Molashvili v. Georgia, in which the Government explicitly acknowledged in its unilateral declaration that the applicant would be entitled to apply for the reopening of the criminal proceedings in accordance with the pertinent provision of domestic law, which allowed for such a reopening if the Court had established, in a judgment or decision, that there had been a breach of Convention.

The Court thus accepts the applicants arguments and finds that, under Croatian law and practice as it currently stands, a decision of the Court striking out the application from its list does not provide the same certain access to a procedure allowing for the possibility of reopening domestic criminal proceedings as would a Court judgment finding a violation of the Convention.

For the above reasons, the Court cannot make a finding that it is no longer justified to continue the examination of the applications. Moreover, respect for human rights, as defined in the Convention and its Protocols, requires it to continue the examination of the case. The Governments request for the applications to be struck out of the list of cases under Article 37 of the Convention must therefore be rejected.

Α. Alleged violation of the principle of equality of arms as regards the submissions of the competent State Attorneys Office

The Court notes that the fact that violations of Article 6 § 1 have repeatedly been found in cases against Croatia originated in a situation where, under the relevant domestic law, the courts were under no obligation to forward to the defence the opinion of the State Attorneys Office at the level immediately above the office conducting the prosecution in the proceedings.

The Court notes that the amendments made to the relevant domestic law in the wake of the Zahirović judgment excluded the possibility of the superior State Attorney submitting an opinion after the examination of a case during appeal proceedings. The issues of inequality between the parties and the lack of an adversarial trial in that respect were thereby removed. However, in the proceedings complained of by the first, second, fourth, fifth, sixth and seventh applicants, the previous legislation and practice were applicable. In the proceedings complained of by the eighth applicant the new legislation and practice were applicable and there was no issue of the superior State Attorney submitting a separate opinion after the examination of a case during the appeal proceedings. In those proceedings the reply of the Municipal State Attorney to the eighth applicants appeal was not forwarded to the defence, which appears to be an isolated issue.

Accordingly, in view of these findings, and having regard to its caselaw as set out in the cases of ZahirovićLonić and Bosak and Others, the Court finds that there has been a violation of Article 6 § 1 of the Convention in respect of the first, second, fourth, fifth, sixth, seventh and eighth applicants.

Β.  The third, fourth, sixth, seventh and eighth applicants absence from the session of the appeal panel

In the present case, the Court notes that in their appeals the third, fourth, sixth, seventh and eighth applicants each contested their conviction and sentence on both factual and legal grounds. The appellate courts were therefore called upon to make a full assessment of their guilt or innocence in respect of the charges against them, in the light of not only the arguments that they had raised before the first-instance court, but also those concerning the alleged failures of that court to establish all the relevant facts and to apply the relevant substantive and procedural rules correctly. However, contrary to the requirements of the above case-law, the appellate courts held sessions without the third, fourth, sixth, seventh and eighth applicants being present.

The Court notes that the fact that violations of Article 6 §§ 1 and 3 (c) have repeatedly been found in cases against Croatia originated in a situation where, under the relevant domestic law and practice applicable at the time, the appellate courts did not notify the accused persons of the session of the appeal panel if they were in detention and had a lawyer, or if in the summary proceedings they received a fine or a suspended sentence.

Accordingly, in view of these findings, and having regard to its case-law as set out in the cases of ZahirovićLonić and Bosak and Others, the Court finds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in respect of the third, fourth, sixth, seventh and eighth applicants.

Just satisfaction: 1,000 euros (EUR), each, to the first and second applicants, and EUR 1,500, each, to
the fourth, fifth, sixth, seventh and eight applicants for non-pecuniary damage; EUR 1,244, each, to
the first and second applicants, EUR 844 to the sixth applicant, and 1,644, each, to the fourth, fifth
and seventh applicants, for costs and expenses

 


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