FIRST SECTION
CASE OF KRALJEVIĆ GUDELJ AND OTHERS v. CROATIA
(Application nos. 42411/16 and 2 others)
JUDGMENT
STRASBOURG
10 June 2021
This judgment is final but it may be subject to editorial revision.
In the case of Kraljević Gudelj v. Croatia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Krzysztof Wojtyczek, President,
Erik Wennerström,
Ioannis Ktistakis, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
three applications (nos. 42411/16, 51412/16 and 52016/16) 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 three Croatian nationals, Ms Marina Kraljević Gudelj, Mr Krešimir Kašinec and Mr Slavko Vukšić (“the applicants”), on the dates indicated in the appendix;
the decision to give notice to the Croatian Government (“the Government”) of the complaints under Article 6 §§ 1 and 3 (c) of the Convention and to declare inadmissible the remainder of applications nos. 42411/16 and 51412/16;
the parties’ observations;
Having deliberated in private on 18 May 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the applicants’ complaints, under Article 6 §§ 1 and 3 (c) of the Convention, that in the criminal proceedings against them they had not been given an opportunity to attend the sessions of the appeal panel (the first and third applicants) and that the principle of equality of arms had been breached as the submission of the State Attorney’s Office had not been forwarded to the defence (the second applicant).
THE FACTS
2. A list of the applicants is set out in the appendix.
3. The Government were represented by their Agent, Ms Š. Stažnik.
4. The facts of the case, as submitted by the parties, may be summarised as follows.Kraljević Gudelj v. Croatia, application no. 42411/16
5. On 29 July 2013 the first applicant was indicted in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) on charges of forgery of an official document.
6. On 21 March 2014 the Zagreb Municipal Criminal Court found the first applicant guilty as charged and sentenced her to one year’s imprisonment, replacing the custodial measure with community service.
7. In May 2014 the first applicant lodged an appeal against the Zagreb Municipal Criminal Court’s judgment with the Zagreb County Court (Županijski sud u Zagrebu), challenging the factual and legal grounds for her conviction and sentence, and complaining of a number of substantive and procedural flaws in the trial and the judgment. She also asked that her lawyer be invited to attend the session of the appeal panel.
8. The Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) – the competent prosecuting authority before the Zagreb Municipal Criminal Court – also appealed against the first applicant’s sentence.
9. On 18 March 2015 the Požega County Court (Županijski sud u Slavonskom Brodu, Stalna služba u Požegi), to which the case had been transferred in the meantime, held a session without informing the first applicant or her lawyer. On the same day it dismissed both appeals as unfounded and upheld the judgment at first instance. It did not provide any reasoning as to why the first applicant or her lawyer had not been invited to attend the session.
10. On 8 May 2015 the first applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), arguing, inter alia, that she and her lawyer had not been given an opportunity to be present at the session of the appeal panel.
11. On 14 January 2016 the Constitutional Court declared the first applicant’s constitutional complaint inadmissible as manifestly ill-founded.
12. The decision of the Constitutional Court was notified to the first applicant’s representative on 27 January 2016.Kašinec v. Croatia, application no. 51412/16
13. On 28 March 2007 the second applicant was indicted in the Zagreb Municipal Criminal Court on charges of indecent conduct towards a child.
14. On 23 March 2009 the Zagreb Municipal Criminal Court found the second applicant guilty as charged and sentenced him to nine months’ imprisonment. A security measure of compulsory psychiatric treatment was also ordered. A further charge was dismissed.
15. On 6 August 2009 the second applicant lodged an appeal with the Zagreb County Court (Županijski sud u Zagrebu), alleging numerous substantive and procedural flaws in the proceedings and the judgment.
16. During the appeal proceedings, the case file was forwarded to the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu), which submitted a reasoned opinion to the Zagreb County Court, calling for the dismissal of the appeal. The opinion was not forwarded to the appellant.
17. On 22 March 2011 the Zagreb County Court held a session in the presence of the second applicant, his lawyer and the Zagreb County Deputy State Attorney (zamjenik Županijskog državnog odvjetnika u Zagrebu). During the session, the Zagreb County Deputy State Attorney confirmed his reasoned opinion. The second applicant’s lawyer reiterated the arguments set out in the appeal. The parties stated that they had no objections concerning the manner in which the session had been conducted or the content of the official record.
18. On the same day the Zagreb County Court allowed the second applicant’s appeal in part; thus it
(a) discounted the period of pre-trial deprivation of liberty from the custodial sentence imposed; and
(b) determined the duration of the security measure of compulsory psychiatric treatment.
It dismissed the remainder of the second applicant’s appeal, upholding the judgment at first instance.
19. On 14 June 2011 the second applicant lodged a constitutional complaint with the Constitutional Court, complaining, inter alia, that during the appeal proceedings the opinion of the Zagreb County State Attorney’s Office had not been forwarded to him or his lawyer.
20. On 19 May 2016 the Constitutional Court dismissed the second applicant’s constitutional complaint as unfounded, holding that the nature of the opinion in question was such that it could not have formed the sole basis for the judgment. It therefore concluded that the Zagreb County Court’s failure to forward the opinion of the Zagreb County State Attorney’s Office to the appellant had not constituted a breach of the second applicant’s constitutional rights.
21. The decision of the Constitutional Court was notified to the second applicant’s representative on 1 June 2016.Vukšić v. Croatia, application no. 52016/16
22. On 30 June 2009 the third applicant and his company were indicted in the Našice Municipal Court (Općinski sud u Našicama) on charges of unlawful exploitation of mineral resources.
23. After two remittals of the case by the appeal court for re‑examination, on 24 October 2014 the Našice Municipal Court found the third applicant guilty as charged and sentenced him to six months’ imprisonment, suspended for two years.
24. In November 2014 the third applicant appealed against his conviction and sentence, alleging a number of substantive and procedural flaws. He also asked that his lawyer be invited to attend the session of the appeal panel. The Našice Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Našicama) – the competent prosecuting authority before the Našice Municipal Court – also appealed against the third applicant’s sentence.
25. On 22 January 2015 the Osijek County Court (Županijski sud u Osijeku) held a closed session, finding that the statutory requirements for a public session had not been met (see paragraph 29 below). On the same day the Osijek County Court delivered a judgment in which it upheld the third applicant’s conviction and increased his sentence to ten months’ imprisonment, suspended for three years. It held that the degree of damage inflicted on the State by the commission of the offence and the third applicant’s determination and perseverance in reoffending justified imposing a harsher sentence on him.
26. On 3 March 2015 the third applicant lodged a constitutional complaint with the Constitutional Court, complaining, inter alia, that he and his lawyer had not been given an opportunity to be present at the session of the appeal panel.
27. On 9 March 2016 the Constitutional Court dismissed the third applicant’s constitutional complaint, finding that, since he had been given a suspended sentence, the appellate court had not been obliged to invite him to attend the session in question. The decision was notified to the applicant’s representative on 18 March 2016.
RELEVANT LEGAL FRAMEWORK
28. Article 278 (3) of the Criminal Code (Kazneni zakon, Official Gazette no. 125/11, with further amendments) proscribed six months to five years’ imprisonment for forgery of an official document. Article 211 (1) proscribed maximum three years’ imprisonment for unlawful exploitation of mineral resources.
29. The relevant domestic law in force at the material time, concerning the presence of the defence in criminal proceedings at a session of an appeal panel and the forwarding to that party of a reasoned opinion by the State Attorney’s Office submitted in the course of appeal proceedings, is set out in Romić and Others v. Croatia, nos. 22238/13 and 6 others, §§ 65-68, 14 May 2020, with further references therein.
THE LAWJOINDER OF THE APPLICATIONS
30. Having regard to the similar subject matter of all three applications, the Court finds it appropriate to examine them jointly in a single judgment.ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION
31. The applicants complained that they had not had a fair trial. They alleged in particular:
(i) that the respective sessions of the appeal panel had been held in their absence (the first and third applicants); and
(ii) that the principle of equality of arms had been violated in that the submission of the State Attorney’s Office had never been forwarded to the defence (the second applicant).
32. The applicants relied on Article 6 §§ 1 and 3 (c) of the Convention, which reads in its relevant parts 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;
...”The first and third applicants’ absence from the session of the appeal panelAdmissibility
33. The Court notes that these complaints are neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) and 4 of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.Merits
(a) The parties’ arguments
34. The first applicant submitted that her presence at the session of the appeal panel had been necessary for the clarification of the case. She also submitted that presenting the grounds of appeal in person before the appellate court would have a stronger impact than merely stating them in writing. The third applicant contended that he should have been invited to attend the session of the appeal panel because the court had examined the merits of the case as regards questions of both fact and law and had also increased his sentence.
35. The Government argued that under the relevant domestic law and practice in situations such as those in the first and third applicants’ cases − where a defendant had been sentenced to community service or to a suspended term of imprisonment − the appellate court had the discretion to decide whether it was expedient to allow that defendant to attend the session of the appeal panel. The appellate courts had correctly held that there was no reason for the first and third applicants to attend the respective sessions. This was so because the first and third applicants had been heard during the trial and had been given the opportunity to participate effectively in the proceedings at first instance. The Government also submitted that the first applicant’s absence from the session of the appeal panel had not affected the fairness of the criminal proceedings against her, given that the prosecution had not been invited to attend either and given that the competent State Attorney’s Office had not submitted a reasoned opinion on the merits of the case. As to the third applicant, the Government stated that he had been afforded the same opportunity as the opposite party to put forward his arguments in the appeal proceedings. The Government emphasised that he had not even asked to be invited in person to the session of the appeal panel but had only asked that his lawyer be present. The Government also argued that the appellate court had increased the sentence in the third applicant’s case for reasons connected to the seriousness of the offence and his persistence in reoffending rather than for reasons related to his personality and character.
(b) The Court’s assessment
36. The Court notes that it has repeatedly found violations of Article 6 §§ 1 and 3 (c) of the Convention on account of the applicants not having been allowed to attend sessions of the appeal panel in the criminal proceedings against them (see Zahirović v. Croatia, no. 58590/11, §§ 54-64, 25 April 2013; Lonić v. Croatia, no. 8067/12, §§ 90-102, 4 December 2014; Arps v. Croatia, no. 23444/12, §§ 24-29, 25 October 2016; Bosak and Others v. Croatia, nos. 40429/14 and 3 others, §§ 105-09, 6 June 2019; and, most recently, Romić and Others v. Croatia, nos. 22238/13 and 6 others, §§ 99-103, 14 May 2020).
37. The Court notes that the amendments made to the relevant domestic law have removed the origin of the violations found in those cases (see paragraph 29 above). However, in the proceedings complained of by the first and third applicants, the previous legislation and practice were still applicable (see paragraphs 9 and 25 above, and compare Romić and Others, cited above, § 102).
38. In Zahirović (cited above, §§ 58-64) and Lonić (cited above, §§ 94‑102), the Court held that when an appeal court was called upon to make a full assessment of a person’s guilt or innocence regarding the charges on which he or she was convicted, considering not only the arguments that the defendant had submitted before the trial court, but also the grounds of appeal concerning any alleged failures of the trial court to establish all the relevant facts and to apply the relevant substantive and procedural rules correctly, this − as a matter of fairness − required that person’s presence at a session of the appeal panel.
39. As to the Government’s argument that where community service or a suspended term of imprisonment were imposed the appellate courts had had the discretion to decide whether or not the presence of the person concerned at the session of the appeal panel was expedient, the Court notes that it has already dismissed a similar objection in Arps (cited above, §§ 23 and 28). It sees no reason to depart from that finding in the present case.
40. Furthermore, in Lonić (cited above, § 100) the Court considered it irrelevant that the appeal against the judgment at first instance had been lodged only by the applicant, since that had not affected the principal question before the second-instance 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 appeal hearing. For the same reason the Court dismisses the Government’s argument in the present case that, in view of the fact that the prosecution had not been invited either and had not filed any additional submissions in the appeal proceedings, the failure to invite the first applicant to attend the session of the appeal panel had not affected the fairness of the criminal proceedings (see paragraph 35 above).
41. Lastly, the Court notes that the first and third applicants’ cases concerned criminal offences punishable by up to five years’ imprisonment (see paragraph 28 above). Given that the first-instance court did not pronounce a prison sentence (see paragraphs 6 and 23 above), under the domestic law applicable at the material time the appellate courts would not have invited the first and third applicants to attend the respective sessions of the appeal panel even if they had so requested (see Romić and Others, cited above, §§ 67 and 68, and compare Arps cited above, §§ 8, 9 and 15). Furthermore, there is nothing in the case files to conclude that not inviting the first and third applicants to attend the sessions of the appeal panel was motivated by the fact that they had failed to ask to be present in person (see paragraphs 9 and 25 above). In these circumstances, the Court finds that the fact that the first and third applicants did not ask to attend the respective sessions cannot be held against them.
42. Accordingly, having regard to the above considerations and its case‑law as cited in paragraph 36 above, the Court finds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in respect of the first and third applicants.Alleged violation of the principle of equality of arms as regards the failure to forward the opinion of the State Attorney’s Office to the second applicantAdmissibility
43. The Court notes that this complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) and 4 of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.Merits
(a) The parties’ submissions
44. The second applicant contended that the submission of the competent State Attorney’s Office in the criminal proceedings against him had never been forwarded to the defence.
45. The Government first argued that the defence had been aware of the existence of the prosecution’s submission because the second applicant and his lawyer had learned of its existence at the session of the appeal panel which they had attended. They could therefore have asked for the opinion to be read out during the session, or sought an adjournment in order to gain more time to examine it. However, they had done nothing of the sort. Moreover, they had not raised any objections concerning the manner in which the session had been conducted or the content of its official record.
46. The Government further explained that the opinion of the Zagreb County State Attorney’s Office had contained only general statements, and that it had not been substantiated by any analysis of either the factual or the legal issues in the case. It could not have influenced the Zagreb County Court’s decision in any manner. There had therefore been no reason to communicate the submission in question to the second applicant.
47. Lastly, the Government pointed out that since the prosecution had not appealed against the judgment at first instance, the appellate court had not had the power to impose a harsher sentence on the second applicant. In these circumstances, the failure to forward the submission of the Zagreb County State Attorney’s Office to the defence had not constituted a breach of the second applicant’s right to a fair trial.
(b) The Court’s assessment
48. The Court notes that it has repeatedly found violations of Article 6 § 1 of the Convention on the grounds that the submission of the competent State Attorney’s Office was not forwarded to the defence (see Zahirović, cited above, §§ 42-50; Lonić, cited above, §§ 83-86; Kliba v. Croatia [Committee], no. 30375/16, §§ 22-28, 18 April 2019; Bosak and Others, cited above, §§ 91-101; and, most recently, Romić and Others, cited above, §§ 91‑95).
49. The Court notes that the amendments made to the relevant domestic law have removed the origin of the violations found in those cases (see paragraph 29 above). However, in the proceedings complained of by the second applicant, the previous legislation and practice were still applicable (see paragraph 16 above and compare Romić and Others, cited above, §§ 93–94).
50. Referring to the Government’s first argument (see paragraph 45 above), the Court reiterates its finding in Kliba (cited above, § 26) and Bosak and Others (cited above, § 100) that, if the knowledge that observations have been filed by the prosecution were to be entirely dependent on the presence of the defence at the session of the appeal panel, this would amount to imposing a disproportionate burden on the person concerned and would not necessarily guarantee a real opportunity for him or her to comment on those observations. In other words, it would not guarantee an unconditional right of the defence to have knowledge of, and to comment on, the prosecution’s submission in the appeal proceedings.
51. As to the argument that the prosecution’s opinion contained only general statements, the Court notes that it has previously dismissed a similar objection by the Government in Kliba (cited above, § 24; contrast Šimundić v. Croatia (dec.), no. 22388/16, §§ 20-22, 26 March 2019).
52. Therefore, having regard to its case-law as cited in paragraph 48 above, the Court finds that there has been a violation of Article 6 § 1 of the Convention in respect of the second applicant.APPLICATION OF ARTICLE 41 OF THE CONVENTION
53. 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.”Damage
54. The first applicant claimed 38,500 euros (EUR) in respect of pecuniary damage and EUR 13,500 in respect of non-pecuniary damage. The second and third applicants claimed EUR 2,000 each in respect of non‑pecuniary damage.
55. The Government contested those claims, deeming them excessive, unfounded and unsubstantiated.
56. The Court does not discern any causal link between the violation found and the pecuniary damage alleged by the first applicant; it therefore rejects this claim. On the other hand, the Court finds that the applicants must have sustained 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 first, second and third applicants EUR 1,500 each, plus any tax that may be chargeable to them.Costs and expenses
57. The second applicant also claimed EUR 2,550, and the third applicant EUR 6,901.25, for the costs and expenses incurred before the domestic courts and before the Court. The first applicant did not submit a claim for costs and expenses.
58. The Government submitted that the claims for expenses were excessive and had been lodged without any supporting documents, and that they should therefore be rejected.
59. As to the costs and expenses incurred before the domestic courts, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the second and third applicants EUR 845 each.
60. As to the costs incurred before the Court, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award EUR 1,200 to the second applicant and EUR 2,520 to the third applicant, plus any tax that may be chargeable to these applicants.
61. 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, Decides to join the applications;Declares the applications admissible;Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in respect of the first and third applicants as regards their absence from the sessions of the appeal panel;Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the second applicant as regards the breach of the principles of equality of arms and of adversarial trial resulting from the failure to forward the submission of the competent State Attorney’s Office to the defence on appeal;Holds,
(a) that the respondent State is to pay the applicants, within three months, 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) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,045 (two thousand and forty-five euros) to the second applicant and EUR 3,365 (three thousand three hundred and sixty-five euros) to the third applicant, plus any tax that may be chargeable to them, 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;Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 10 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv Tigerstedt Krzysztof Wojtyczek
Deputy RegistrarPresident
APPENDIX
No.
Application no.
Lodged on
Applicant
Year of birth
Place of residence
Represented by
1
42411/16
14/07/2016
Marina KRALJEVIĆ GUDELJ
1973
Split
Nediljko IVANČEVIĆ
2
51412/16
26/08/2016
Krešimir KAŠINEC
1977
Hrvatski Leskovac
Višnja DRENŠKI LASAN
3
52016/16
01/09/2016
Slavko VUKŠIĆ
1949
Našice
Višnja DRENŠKI LASAN
Full & Egal Universal Law Academy