CASE OF LONIĆ v. CROATIA

FIRST SECTION

CASE OF LONIĆ v. CROATIA

(Application no. 8067/12)

JUDGMENT

STRASBOURG

4 December 2014

FINAL

04/03/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Lonić v. Croatia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Isabelle Berro-Lefèvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 13 November 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 8067/12) 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 Croatian national, Mr Davor Lonić (“the applicant”), on 18 January 2012.

2. 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.

3. The applicant complained of inadequate conditions of detention and lack of an effective remedy in that respect, contrary to Articles 3 and 13 of the Convention. He also alleged that he had not had a fair trial, in that during the appeal proceedings an opinion submitted by the State Attorney’s Office had not been forwarded to the defence and the appeal hearing had been held in his absence, contrary to Article 6 §§ 1 and 3 (c) of the Convention.

4. On 17 July 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1956 and lives in Bibinje.

A. Criminal proceedings against the applicant

6. On 6 July 2009 the Zadar County State Attorney’s Office (Županijsko državno odvjetništvo u Zadru; hereinafter: the “State Attorney’s Office”) indicted the applicant in the Zadar County Court (Županijski sud u Zadru) on charges of continuous offences of rape and indecent behaviour against a child.

7. During the proceedings the applicant denied the charges, arguing that he knew the victim and her family, who lived nearby, but had never engaged in any sexual or indecent behaviour with her.

8. On 23 April 2010 the Zadar County Court found the applicant guilty on three counts of rape, one count of sexual intercourse with a child and one count of indecent behaviour, and sentenced him to fourteen years’ imprisonment. The trial bench found that the evidence of several witnesses and expert reports confirmed the victim’s accusations against the applicant, and that the charges brought against him should be classified not as a continuous offence but as cumulative offences of rape, sexual intercourse with a child and indecent behaviour.

9. On 28 May 2010 the applicant lodged an appeal against the first‑instance judgment before the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the factual and legal grounds for his conviction and sentence, and complaining of numerous substantive and procedural flaws in the trial and the judgment. In particular, he argued that he had not had an opportunity to effectively challenge the victim and witnesses during the trial, that a psychologist expert report had not been properly drafted, that the judgment lacked the relevant reasoning, and that the trial bench had erred in the legal classification of the acts at issue and in its factual findings, leaving some crucial facts undetermined. He thus requested that the first-instance judgment be quashed and the case be remitted for a retrial. He also asked that he and his lawyer be invited to the hearing before the Supreme Court.

10. During the appeal proceedings the case file was forwarded to the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske), which submitted in its reasoned opinion that the appeal be dismissed. That submission was never forwarded to the defence.

11. On 12 May 2011 the Supreme Court held a hearing in the presence of the applicant’s lawyer and the Deputy State Attorney, holding that the applicant’s presence was not necessary. During the hearing, the Deputy State Attorney reiterated her reasoned opinion. The applicant’s lawyer complained that there had been a breach of procedure.

12. On the same day the Supreme Court dismissed the applicant’s appeal as ill-founded, reversing the legal classification of the cumulative offences to one continuous act of sexual intercourse with a child, and sentencing the applicant to twelve years’ imprisonment.

13. On 4 July 2011 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). Relying on the Court’s case-law, he complained, inter alia, that during the appeal proceedings the submission of the State Attorney’s Office had never been communicated to the defence and that he had not been given an opportunity to be present at the appeal hearing. The Supreme Court had been invited to examine all the legal and factual aspects of the case, which should not have been done without his presence at the hearing. He also stressed that the defence had not learned about the submission of the State Attorney’s Office until the appeal hearing, and thus had been deprived of an effective opportunity to reply to it.

14. On 10 November 2011 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, holding that there had been no reason, nor requirement in terms of the relevant domestic law, to forward the submission of the State Attorney’s Office to the defence. As to the applicant’s absence from the appeal hearing, the Constitutional Court noted:

“... [T]he Supreme Court examined the appellant’s appeal in the presence of his defence lawyer, who had been invited to the hearing. The Supreme Court partially accepted the appeal and reduced the sentence. Therefore its decision was not to [the appellant’s] detriment. Thus the Constitutional Court finds that the Supreme Court correctly decided not to ensure the appellant’s presence at the appeal hearing.”

15. The decision of the Constitutional Court was served on the applicant’s representative on 23 November 2011.

B. Conditions of the applicant’s detention

16. During the criminal proceedings against him in the Zadar County Court, the applicant was initially remanded in custody in Zadar Prison (Zatvor u Zadru).

17. On 6 September 2010, because of a problem of overcrowding in Zadar Prison, the Prison Administration of the Ministry of Justice (Ministarstvo pravosuđa Uprava za zatvorski sustav) ordered that the applicant be transferred to Pula Prison (Zatvor u Puli). He was transferred on 10 September 2010 and remained in detention on remand in that prison until 25 August 2011 (see paragraph 30 below).

18. According to the applicant, during his stay in Pula Prison he was placed in a cell measuring in total 23.5 square metres, sometimes with five other persons but for most of the time with seven other persons. The cell was equipped with eight beds and eight cupboards, which, given the number of persons, prevented any normal circulation in the cell. He was locked up in such circumstances for twenty-two hours a day. In the winter the heating in the cell was not sufficient and in the summer it was too hot, so that the prisoners, who were allowed to take a shower only once a week, smelt unbearable. The hygiene conditions were poor, as inmates were not provided with sufficient cleaning products and some also smoked in the cell. In addition, food in the canteen often went bad because the refrigerators did not work well. There was only one toilet in the cell, which was not sufficient for eight persons. The applicant therefore had to use a bottle or some other means instead of using the toilet, because the drugs he had been taking for high blood pressure meant that he needed to use the toilet frequently. That caused laughter and mocking among the other prisoners. Moreover, he was distanced from his family. At the beginning, he was allowed only a ten‑minute telephone call with his family per week; later, he had the right to only a fifteen-minute call per week.

19. The Government submitted that the applicant had been placed in a cell measuring in total 23.5 square metres with five to seven other persons, depending on the period at issue. The cell toilet, which the applicant had been able to use at any time, had been separated from the living area. The cell had been appropriately heated and air-conditioned. In addition, it had allowed access to daylight. The hygiene conditions had been very good and Pula Prison had been regularly treated against insects and rodents. The dining area had been separated from the living facilities and the applicant had had the opportunity to buy products from the prison canteen. He had also had the possibility to take two hours’ walk per day in the fresh air and to practise sport activities. The applicant had been allowed to telephone his wife, first for ten minutes per week, and then for fifteen minutes per week. During his stay in Pula Prison the applicant had been provided with full medical care. In particular, he had been examined by a dermatologist on 18 January 2011, by a surgeon on 28 January 2011, by an internist and a specialist in neurology on 17 February and 7 March 2011, and by a psychiatrist on 1 December 2012.

20. On 29 September 2010 the applicant complained to the Prison Administration of the Ministry of Justice, the governor of Pula Prison, and the sentence-execution judge of the Pula County Court (Županijski sud u Puli) about the manner in which he had been transferred and admitted to Pula Prison and the conditions of his detention in that prison. In particular, he alleged that during the transfer he had been threatened with being shot and had not been medically examined upon arrival in Pula Prison. He also complained that he had been placed in a cell with seven other persons and that the hygiene conditions in the cell had been very poor. He stressed that by his transfer to Pula Prison he had been distanced from his family.

21. On 28 October 2010 the Pula County Court obtained a report from the Pula Prison administration concerning the conditions of the applicant’s detention. According to the report, Pula Prison had no information about the applicant’s transfer, which had been organised by the Zadar Prison administration. As to the applicant’s admission to Pula Prison, it was true that he had not been examined by a doctor on the day of his admission but only on the next working day, and that he had not been provided with treatment during the weekend of his admission. However, at that time the Pula Prison administration had not yet received the applicant’s medical documentation, so they had not known about his medical condition and he had not complained about any health problems. The Pula Prison administration also reported that the applicant had been placed in a cell measuring approximately 22 square metres with seven other persons. According to the report, that was contrary to the required standards, but the prison was in any event overcrowded, so it could not be changed.

22. On 17 November 2010 the president of the Pula County Court informed the applicant’s representative by letter about the Pula Prison administration’s report of 28 October 2010, and stated that his complaint had been forwarded to the Zadar County Court because the proceedings were pending before that court.

23. On 26 November 2010 the Zadar County Court requested the Prison Administration of the Ministry of Justice to transfer the applicant back to Zadar Prison as soon as practicable.

24. On 9 December 2010 the Prison Administration of the Ministry of Justice informed the applicant’s representative by letter that it considered the applicant’s complaints ill-founded in any respect. It stressed that the applicant had refused any medical examination and had undergone treatment just before his transfer to Pula Prison. Upon his arrival at Pula Prison he had not asked to be medically examined. Furthermore, the Prison Administration of the Ministry of Justice considered that there had been nothing unlawful in warning the applicant that firearms could be used if he attempted to escape during the transfer. It also considered that the hygiene conditions in Pula Prison were good, although it made no reference to the complaint about overcrowding.

25. On 24 January 2011 the applicant again asked the Prison Administration of the Ministry of Justice and the governor of Pula Prison to be transferred to Zadar Prison.

26. On 28 January 2011 the Prison Administration of the Ministry of Justice informed the applicant that it was not possible to transfer him to any other prison because of the general problem of prison overcrowding.

27. On 2 April 2011 the applicant complained to the Ombudsman (Pučki pravobranitelj) about the conditions of his detention, and the Ombudsman requested that the Prison Administration of the Ministry of Justice inform him about the circumstances of the case.

28. On 26 June 2011 the Ombudsman expressed his concerns to the Prison Administration of the Ministry of Justice concerning the applicant’s transfer to Pula Prison from Zadar Prison, since the relevant information showed that Pula Prison was more overcrowded than Zadar Prison. On 24 August 2011 the Ombudsman informed the applicant that there was a problem of prison overcrowding and that nothing further could be done concerning his complaints.

29. In the meantime, on 4 July 2011 the applicant lodged a constitutional complaint to the Constitutional Court about the conditions of his detention, and challenged the fairness of the criminal proceedings against him (see paragraph 13 above).

30. On 25 August 2011 the applicant was transferred from Pula Prison to Zagreb Prison (Zatvor u Zagrebu), where he started to serve his prison sentence.

31. On 10 November 2011, the Constitutional Court dismissed the applicant’s constitutional complaint that the criminal proceedings had been unfair (see paragraph 14 above) and declared the applicant’s complaint about the conditions of his detention in Pula Prison inadmissible on the grounds that he was no longer being held in Pula Prison.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic law

1. Constitution

32. 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 and 85/2010) read as follows:

Article 23

“No one shall be subjected to any form of ill-treatment ...”

Article 25

“All detainees and convicted persons shall be treated in a humane manner and with respect for their dignity.”

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 ...;

- to be tried in his presence, provided that he is available to the court;

...”

33. The relevant part of section 62 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/1999, 29/2002, 49/2002) reads:

“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt) of a State body, a body of local and regional self-government, or a legal person with public authority, which has decided about his or her rights and obligations, or about a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...”

2. Criminal Code

34. The relevant part of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997, 27/1998, 129/2000, 51/2001, 105/2004 and 84/2005) provides:

Article 61

“(1) The provisions of this Code concerning cumulative offences shall not be applicable when the perpetrator commits one continuous offence.

(2) A continuous offence is committed when the perpetrator deliberately commits several same or similar offences, which in terms of the manner of their commission, temporal connection and other factual circumstances [of the offences] forms a unity.

(3) In the case of a continuous offence of the same legal character, the court shall determine the sentence applicable to that offence. In the case of similar offences [forming a continuous offence], the court shall determine the sentence applicable to the most serious of such offences.”

Rape

Article 188

“(1) Whosoever forces another person to perform sexual intercourse or another sexual act of equal nature by using force or threatening to directly attack her or a person close to her, shall be liable to imprisonment for a term of one to ten years.

...

(4) If the offence under paragraph 1 of this Article has been committed against a minor, the perpetrator shall be liable to imprisonment for a minimum of three years.”

Sexual intercourse with a child

Article 192

“(2) Whosoever forces a child to perform sexual intercourse or another sexual act of equal nature (Article 188 § 1) ... shall be liable to imprisonment for a minimum of three years.”

3. Code of Criminal Procedure

35. 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;

...”

Pre-trial detention and treatment of detainees

Article 112

“(1) Pre-trial detention should not degrade the honour and dignity of detainees. ...”

Article 117

“(1) The president of the competent court shall supervise the administration of pre-trial detention.

(2) ... The president of the court or the judge designated [by the president] shall take all necessary measures to eliminate any irregularities which he or she observes during the supervision of detention. ...

(3) The president of the trial court, investigating judge or the president of the trial panel or the single judge conducting the proceedings, irrespective of the supervision carried out under paragraph 2 of this Article, may at any time visit the detainees, talk to them and take their complaints.

...”

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 a 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 a 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).

...”

Article 381

“If the appeal has been lodged only in favour of the defendant, the judgment cannot be amended to his detriment.”

(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.

...”

36. On 18 December 2008 a new Code of Criminal Procedure was enacted (Official Gazette, nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012, 56/2013; hereinafter: the “2008 Code of Criminal Procedure”). The 2008 Code of Criminal Procedure fully entered into force on 1 September 2011, but did not apply to criminal proceedings instituted under the 1997 Code of Criminal Procedure (see paragraph 35 above), for which that Code remained applicable.

37. Further amendments to the 2008 Code of Criminal Procedure were introduced on 15 December 2013 (Official Gazette no. 145/2013). In so far as relevant for the case at issue, the amended Article 215, referring to the execution of the Court’s judgment in the case of Zahirović v. Croatia (no. 58590/11, 25 April 2013), excluded the possibility for the State Attorney’s Office to submit an opinion after the examination of a case during the appeal proceedings. The same amendments provide, with a view to excluding the possibility of unequal treatment of the parties in hearings before the appeal court, that parties who request to be present at the appeal hearing shall be notified of the hearing (Article 216).

4. Enforcement of Prison Sentences Act

38. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999, 190/2003, 76/2007, 27/2008, 83/2009) read as follows:

COMPLAINTS

Section 15

“(1) Inmates shall have the right to complain about an act or decision of a prison employee.

(2) Complaints shall be lodged orally or in writing with a prison governor, or the Head Office of the Prison Administration [of the Ministry of Justice]. Written complaints addressed to the Head Office of the Prison Administration [of the Ministry of Justice] shall be submitted in an envelope which the prison authorities may not open ...

(5) If a prisoner lodges a complaint with the sentence-execution judge, it shall be considered a request for judicial protection under section 17 of this Act.”

JUDICIAL PROTECTION AGAINST ACTS AND DECISIONS OF THE PRISON ADMINISTRATION

Section 17

“(1) A prisoner may lodge a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act.

(2) The sentence-execution judge shall dismiss the request for judicial protection if he or she finds that it is unfounded. If the request is founded, the sentence-execution judge shall order that the unlawful deprivations or restrictions of rights be remedied. If that is not possible, the sentence-execution judge shall find a violation and prohibit its repetition.

(3) The prisoner and the prison facility may lodge an appeal against the decision of the sentence-execution judge ... ”

B. Relevant practice

39. As regards complaints by remand prisoners about conditions of detention, the Constitutional Court found in its decision no. U‑III‑4182/2008 of 17 March 2009 that Article 117 of the Code of Criminal Procedure (see paragraph 35 above) did not provide a sufficient and effective remedy. It therefore held that the protection of detainees under the Code of Criminal Procedure had to be read in conjunction with sections 15 and 17 of the Enforcement of Prison Sentences Act in order to provide for effective judicial protection concerning conditions of detention (see paragraph 38 above). The Constitutional Court thus gave the following mandatory instruction:

“Against the above background, and taking into account that any legal remedy used by persons deprived of their liberty in county and state prisons must have the same objective – effective protection of human rights – the Constitutional Court establishes the following mandatory interpretation of the law:

- courts, by exercising the powers of the sentence-execution judge concerning the protection of the rights of inmates serving prison sentences, are obliged to apply those same powers with regard to the complaints of remand prisoners about the arguable violations of their rights during the detention.

This will relieve the omissions in the regime of use of legal remedies concerning the detention of remand prisoners and will ensure that detainees have the right to lodge a complaint under section 15 of the Enforcement of Prison Sentences Act and can seek protection of their rights under section 17 of the Enforcement of Prison Sentences Act. These two remedies will be within the competence of the prison governor, as regards the first complaint, and in the competence of the judge or panel of judges deciding about the remand in custody in the competent criminal court.

By this decision, which is mandatory for the competent judicial and administrative bodies under section 77(2) of the Constitutional Court Act, the legal protection of remand prisoners is, in terms of the effective remedies, equated with the protection of the rights of inmates serving prison sentences. Accordingly, a constitutional complaint alleging a violation of the rights guaranteed under Article 25 § 1 of the Constitution becomes a subsidiary legal remedy, which can be used only after the exhaustion of the above-mentioned remedies.”

III. RELEVANT INTERNATIONAL MATERIAL

40. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) visited Croatia from 19 to 27 September 2012. In its report CPT/Inf (2014) 9 of 18 March 2014 it noted the problem of prison overcrowding in Croatia. The relevant part of the report reads:

“B. Prison establishments

1. Preliminary remarks

26. The Croatian Penitentiary system has two categories of establishment: State Prisons (kaznionica) and County Prisons (zatvori). As a general rule, State Prisons should hold inmates serving a prison sentence or serving a security measure of mandatory medical treatment of an addict (pursuant to Article 76 of the CC) in addition to the prison sentence. County Prisons should accommodate remand prisoners and inmates serving criminal sentences of up to six months.

a. prison overcrowding

27. The overall prison population of Croatia has increased by 1,200 inmates to 5,400 (i.e. more than 25%) since the CPT’s last visit in 2007, while the official capacity of the prison estate has risen by only some 400 places to 3,771. Overcrowding is thus becoming more acute within the prison system. The delegation observed the negative impact of prison overcrowding on many aspects of prison life in the establishments visited, notably in Zagreb and Sisak County Prisons. Originally conceived as prisons (zatvori) for remand prisoners and persons serving sentences of up to six months’ duration, 50 percent of the population now held in these establishments are convicted prisoners serving sentences of up to five years. At Zagreb County Prison, the resultant increase in the number of prisoners has meant, for example, that rooms previously assigned for common activities have been converted into cellular accommodation.

Recognising the ever worsening serious problem of overcrowding and the need to combat it, the Croatian Government adopted an Action Plan for the Improvement of the Prison System of the Republic of Croatia from 2009 to 2014 which envisages the construction of new prison establishments in Glina, Zagreb and Šibenik, with a combined total of 2,072 places. It also envisages a set of additional measures, such as recruiting more staff and enhancing the initial and in-service training provided to staff. The delegation visited the recently inaugurated building at Glina State Prison which can accommodate up to 420 inmates and was shown the building site of a new section of Zagreb County Prison which, once completed in 2016, will raise the capacity of the prison by 382 places. Representatives of the Ministry of Justice informed the delegation that the extension had been funded with the assistance of a loan from the Council of Europe Development Bank (CEB) and that another loan application with the CEB had been completed for the construction of the new State Prison in Šibenik with a proposed capacity of 1,270 places.

28. These steps demonstrate a commitment by the Croatian authorities to tackle overcrowding. However, as already stressed by the CPT in its previous reports to the Croatian authorities, providing additional accommodation cannot offer a lasting solution to the problem of prison overcrowding, at least not without adopting, in parallel, policies designed to limit or modulate the number of persons sent to prison. In this respect, the Committee takes note of the efforts invested by the Ministry of Justice since 2007 in elaborating a legal framework and putting into place a probation system at the national level, which includes the possibility for State Prosecutors, Courts and Probation Offices to enlarge the scope and number of persons subject to alternative measures such as community work and protected supervision. At least 15 percent of the current convicted prison population (i.e. those inmates serving sentences of up to one year) could potentially benefit from non-custodial measures once the new Law on Probation is adopted.

The CPT recommends that the Croatian authorities pursue their efforts to combat prison overcrowding taking into account the recommendations adopted by the Committee of Ministers of the Council of Europe, in particular Recommendation Rec(99)22 concerning prison overcrowding and prison population inflation, Recommendation Rec(2003)22 on conditional release (parole), Recommendation Rec(2006)13 on the use of remand in custody and Recommendation Rec2010(01) on the Council of Europe probation rules. The Committee would like to receive updated information on the impact of the measures being taken to tackle prison overcrowding.”

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE CONVENTION

41. The applicant complained of the inadequate conditions of his detention in Pula Prison from 10 September 2010 to 25 August 2011, and alleged that he had not had an effective remedy for his complaints in that respect. He relied on Articles 3 and 13 of the Convention, which read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Admissibility

1. The parties’ arguments

42. The Government submitted that the applicant could have asked to start serving his prison sentence before it had become final and enforceable. That would have allowed his transfer to another county or State prison and thus the Enforcement of Prison Sentences Act would have been applicable to his situation. It would also have allowed him to use the remedies provided for in that Act to protect the rights of inmates serving prison sentences, such as a complaint to the sentence-execution judge. However, the applicant had failed to avail himself of a request to start serving his prison sentence before it became final and enforceable, and thus he had failed to exhaust domestic remedies.

43. The applicant considered that a request to serve the prison sentence before it had become final and enforceable had not been an effective remedy to be exhausted because there was a general problem of prison overcrowding in Croatia. Moreover, it would have been contrary to his position of denying his guilt for the offences at issue if he had asked to serve his sentence before it had become final and enforceable. In any event, given the case-law of the Constitutional Court (see paragraph 39 above), it had been unnecessary to secure his right to use a remedy under the Enforcement of Prison Sentences Act to address his complaints about the conditions of detention.

2. The Court’s assessment

44. The Court considers that the issue of non-exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint that he did not have at his disposal an effective remedy in respect of his allegations about the conditions of his detention. The Court therefore finds it necessary to join the Government’s objection to the merits of the complaint under Article 13 of the Convention (see, for example, Shcherbakov v. Russia (no. 2), no. 34959/07, § 59, 24 October 2013, and Sergey Babushkin v. Russia, no. 5993/08, § 34, 28 November 2013).

45. The Court notes that the complaints under Articles 3 and 13 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Article 13 of the Convention

(a) The parties’ arguments

46. The applicant contended that during his stay in Pula Prison he had used the domestic remedies concerning the conditions of his detention in accordance with the case-law of the Constitutional Court (see paragraph 39 above). He had thus complained to the sentence-execution judge of the Pula County Court, who had not taken any action. The only answer he had received had been the letter of the president of that court. The applicant had also complained directly to the Constitutional Court, but that had been to no avail because that court had declared his complaint inadmissible merely on the grounds that at the time of its decision, he was no longer being held in Pula Prison. In those circumstances, he had not had an effective remedy at his disposal for the conditions of his detention.

47. The Government argued that the applicant had had an effective remedy at his disposal concerning the alleged inadequate conditions of his detention, which he had used. He had complained to the Prison Administration of the Ministry of Justice, the Pula County Court and the Pula Prison governor, and they had replied to his complaints indicating that he could not be transferred to another prison or prison ward due to the problem of overcrowding. In the Government’s view, that had been sufficient, as the use of a remedy did not require its favourable outcome.

(b) The Court’s assessment

(i) General principles

48. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before the Court to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000‑XI, and Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24).

49. However, an applicant is normally required to have recourse only to those remedies that are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia, Vernillo v. France, 20 February 1991, § 27, Series A no. 198, and Johnston and Others v. Ireland, 18 December 1986, § 22, Series A no. 112).

50. In the context of complaints about inhuman or degrading conditions of detention, the Court has already observed that two types of relief are possible: an improvement in the material conditions of detention and compensation for the damage or loss sustained on account of such conditions (see Roman Karasev v. Russia, no. 30251/03, § 79, 25 November 2010, and Benediktov v. Russia, no. 106/02, § 29, 10 May 2007). If an applicant has been held in conditions that are in breach of Article 3, a domestic remedy capable of putting an end to the ongoing violation of his or her right not to be subjected to inhuman or degrading treatment is of the greatest value. However, once the applicant has left the facility in which he or she endured the inadequate conditions, he or she should have an enforceable right to compensation for the violation that has already occurred (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 98, 10 January 2012).

51. Where the fundamental right to protection against torture or inhuman and degrading treatment is concerned, preventive and compensatory remedies have to be complementary in order to be considered effective. In contrast to cases concerning the length of judicial proceedings or non‑enforcement of judgments, where the Court accepted in principle that a compensatory remedy alone might suffice (see Mifsud v. France (dec.) [GC], no. 57220/00, § 17, ECHR 2002‑VIII; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 187, ECHR 2006‑V; and Burdov v. Russia (no. 2), no. 33509/04, § 99, ECHR 2009 ‑...), the existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3.

52. Indeed, the special importance attached by the Convention to that provision requires, in the Court’s view, that the States parties establish, over and above a compensatory remedy, an effective mechanism in order to put an end to any such treatment rapidly. Otherwise, the prospect of future compensation would legitimise particularly severe suffering in breach of this core provision of the Convention and would unacceptably weaken the legal obligation on the State to bring its standards of detention into line with the Convention requirements (see Ananyev and Others, cited above, § 98).

(ii) Application of these principles to the present case

53. The Court notes at the outset that the applicant raises an “arguable” complaint under Article 3 of the Convention concerning the conditions of his detention in Pula Prison.

54. The Court has already observed, as regards the remedies concerning the prison conditions in general in Croatia, that a complaint lodged with the competent judicial authority or the prison administration was an effective remedy since it could have led to an applicant’s removal from the inadequate prison conditions. Moreover, in the event of an unfavourable outcome, the applicant could have pursued his complaints before the Constitutional Court (see Štitić v. Croatia (dec.), no. 29660/03, 9 November 2006, and Dolenec v. Croatia, no. 25282/06, § 113, 26 November 2009), which also had the competence to order the applicant’s release or removal from the inadequate prison conditions (see, inter alia, Peša v. Croatia, no. 40523/08, § 80, 8 April 2010).

55. In the context of the detention of remand prisoners, the mandatory instruction of the Constitutional Court (see paragraph 39 above) was that the use of judicial remedies or complaints lodged before the prison administration by a prisoner on remand concerning inadequate prison conditions had the same objective (see Šebalj v. Croatia, no. 4429/09, § 173, 28 June 2011). Thus, under sections 15 and 17 of the Enforcement of Prison Sentences Act (see paragraph 38 above) a prisoner on remand had a right to seek protection and appropriate relief from the prison administration, namely the prison governor, and then before the competent criminal court which had ordered his or her detention. In the event of an unfavourable outcome, this would also allow the applicant to pursue the complaint before the Constitutional Court (see paragraph 39 above). In these circumstances, the Court sees no relevance in the Government’s argument that the applicant could have asked to start serving his prison sentence before it became final and enforceable, because that would have changed his position from a prisoner on remand to an inmate serving a prison sentence in order that the remedies under the Enforcement of Prison Sentences Act would be applicable to his situation (see paragraph 42 above). It therefore rejects the Government’s objection previously joined to the merits (see paragraph 44 above).

56. However, only a complaint before the competent court entails judicial protection and is susceptible to a further appeal and subsequently a constitutional complaint before the Constitutional Court (see paragraphs 38 and 39 above; and Šimunovski v. Croatia (dec.), no. 42550/08, 21 June 2011; Srbić v. Croatia (dec.), no. 4464/09, 21 June 2011; Peša, cited above, §§ 78-80, 8 April 2010; Šebalj, cited above, §§ 173-77; and Longin v. Croatia, no. 49268/10, § 35, 6 November 2012).

57. In order for judicial protection to be effective, the competent court must adopt a decision concerning the complaints of inadequate conditions of detention, as provided for under section 17 of the Enforcement of Prison Sentences Act (see paragraph 38 above). Accordingly, if the applicant’s complaint before the judicial authorities is answered only by a letter and not by a decision, he or she is not in a position to make use of further appeal because it is impossible to lodge an appeal against a letter (see Testa v. Croatia, no. 20877/04, § 40, 12 July 2007, and Pilčić v. Croatia, no. 33138/06, § 31, 17 January 2008).

58. The Court notes in the case at issue that the applicant first complained on 29 September 2010 to the Prison Administration of the Ministry of Justice, the governor of Pula Prison and the sentence-execution judge of the Pula County Court about his admission and the conditions of detention in Pula Prison (see paragraph 20 above). After obtaining a report from the Pula Prison administration, which raised concerns about the conditions of the applicant’s detention (see paragraph 21 above), the Pula County Court forwarded the applicant’s complaint to the Zadar County Court, since the latter had ordered his remand in custody and was thus competent to decide about his complaints, as provided for under section 17 of the Execution of Prison Sentences Act and required by the mandatory instruction of the Constitutional Court (see paragraphs 38 and 39 above).

59. However, the only reply which the applicant received concerning his complaints was a letter from the Pula County Court, indicating that the complaint had been forwarded to the Zadar County Court (see paragraph 22 above), and a letter from the Prison Administration of the Ministry of Justice finding his complaints unfounded but making no analysis of the alleged issue of overcrowding (see paragraph 24 above). Although the Zadar County Court instructed the Prison Administration of the Ministry of Justice to transfer the applicant back to Zadar Prison whenever practicable (see paragraph 23 above), it adopted no judicial decision concerning the applicant’s complaint and thus prevented him from pursuing further remedies which could have eventually led to his removal from the inadequate prison conditions.

60. Furthermore, the Court notes that on 24 January 2011 the applicant once more complained to the Prison Administration of the Ministry of Justice and the Pula Prison governor, requesting his transfer from Pula Prison, but again received only a letter indicating that it was not possible to transfer him to any prison because of the general problem of prison overcrowding (see paragraphs 25 and 26 above). Similarly, the applicant’s complaint to the Ombudsman was futile, as the Ombudsman informed the applicant that there was a problem of prison overcrowding and that nothing further could be done (see paragraph 30 above).

61. The Court also observes that when the applicant brought his complaints about the conditions of his detention before the Constitutional Court – in the context of his constitutional complaint against the criminal court’s judgment finding him guilty, which he had lodged while still being held in Pula Prison (see paragraph 29 above) – that court failed to take swift action to rectify the failures of the lower instances. The Constitutional Court declared the applicant’s constitutional complaint inadmissible on 10 November 2011 merely because by then, he was no longer being detained in Pula Prison (see paragraph 31 above). It follows that by failing to decide about the applicant’s complaint promptly and declaring it inadmissible at the outset, the Constitutional Court brought about a situation in which the applicant was deprived of any meaningful remedy (for a similar issue under Article 5 § 4 of the Convention, see, amongst many others, Trifković v. Croatia, no. 36653/09, § 139, 6 November 2012).

62. While it is true that the applicant was transferred to Zagreb Prison on 25 August 2011, the fact remains that after his complaint of 29 September 2010 he continued to dwell in allegedly inadequate prison conditions for almost a further year, during which no relevant decision on his complaint was adopted (compare Longin, cited above, § 40).

63. Although the Court does not call into question the adequacy of remedies provided for under the national law in respect of the prison conditions as such, it finds that in the circumstances of the present case the applicant did not have an effective remedy for his grievances about the inadequate conditions of detention.

64. There has accordingly been a violation of Article 13 in conjunction with Article 3 of the Convention.

2. Article 3 of the Convention

(a) The parties’ arguments

65. The applicant contended that during his stay in Pula Prison he had been held in inadequate conditions. The prison cell had been overcrowded, unhygienic and unsanitary and he had been confined in such conditions for twenty-two hours a day (see paragraph 18 above). Moreover, after his transfer to Pula Prison, his contact with his family had become very difficult because he had not been given sufficient time to communicate with them and it had been very difficult for them to travel to Pula. Furthermore, his well-being had been put at risk during the transfer and admission to Pula Prison, because the transfer had been organised on a hot summer’s day and on his arrival at Pula Prison he had not been examined by a doctor because his medical records had still been in Zadar Prison. There had been no reasonable justification for the prison authorities’ failure to organise his transfer appropriately and to send his medical records with him to Pula, nor had there been any reason for threatening to shoot him during the transfer.

66. The Government argued that the conditions of the applicant’s detention had been adequate. The overall personal space which he had had at his disposal had been slightly beyond the requisite four square metres. The hygiene and sanitary conditions had been good and the applicant had been allowed to take daily two-hour walks outside the cell, in compliance with the relevant international and domestic standards. Furthermore, the applicant had been given adequate medical treatment and had been examined by a doctor several times (see paragraph 19 above). The Government also pointed out that following the applicant’s admission to Pula Prison he had not complained of any medical problems or requested any treatment. He had therefore been examined by a doctor on 13 September 2010 and had been prescribed treatment for high blood pressure.

(b) The Court’s assessment

(i) General principles

67. The Court has held on many occasions that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).

68. According to the Court’s case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Kudła, cited above, § 91, and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers, cited above, § 74).

69. The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. Under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła, cited above, §§ 92-94).

70. In connection with the complaints concerning the prison overcrowding, the Court has held that in deciding whether or not there has been a violation of Article 3 on account of a lack of personal space, it has to bear in mind the following three elements: (a) each detainee must have an individual sleeping place in the cell; (b) each detainee must dispose of at least three square metres of floor space; and (c) the overall surface of the cell must be such as to allow the detainees to move freely between the furniture items. The absence of any of the above elements creates in itself a strong presumption that the conditions of detention amounted to degrading treatment and were in breach of Article 3 (see Ananyev and Others, cited above, § 148).

71. The Court reiterates that, quite apart from the necessity of having sufficient personal space, other aspects of physical conditions of detention are relevant for the assessment of compliance with Article 3. Such elements include, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of heating arrangements, possibility of using the toilet in private, and compliance with basic sanitary and hygiene requirements (see Aden Ahmed v. Malta, no. 55352/12, § 88, 23 July 2013).

72. Cases concerning allegations of inadequate conditions of detention do not lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), because in such instances the respondent Government alone have access to information capable of corroborating or refuting the allegations. Accordingly, applicants might experience certain difficulties in procuring evidence to substantiate a complaint in that connection. Nonetheless, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and provide – to the greatest possible extent – some evidence in support of their complaints (see Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010). However, after the Court has given notice of the applicant’s complaint to the Government, the burden is on the latter to collect and produce relevant documents. A failure on their part to submit convincing evidence on material conditions of detention may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Gubin v. Russia, no. 8217/04, § 56, 17 June 2010, and Khudoyorov v. Russia, no. 6847/02, § 113, ECHR 2005‑X (extracts)).

(ii) Application of these principles to the present case

73. The Court firstly observes that one of the characteristics of the applicant’s detention that requires examination is his allegation that his cell was overpopulated (compare Longin, cited above, § 54, and Tunis v. Estonia, no. 429/12, § 45, 19 December 2013).

74. The Court observes at the outset the general problem of overcrowding in Croatian prisons, about which the CPT raised concerns in its latest report of 18 March 2014 (see paragraph 40 above). It also notes that in the case at issue the Ombudsman also raised concerns about the problem (see paragraph 28 above), and that in response to the applicant’s complaints, several domestic authorities referred to the problem of general overcrowding in prisons (see paragraphs 21 and 26 above).

75. It is not in dispute between the parties that the applicant was placed in a cell measuring in total 23.5 square metres together with five to seven other persons (see paragraphs 17 and 19 above). That was also confirmed by the relevant documents submitted to the Court (see paragraph 21 above). The applicant alleged that for most of the time he had been held in a cell with seven other persons, and the Government provided no relevant document to the Court to refute that allegation. Moreover, the Court has been unable to examine the relevant facts from the decisions of the domestic authorities concerning the applicant’s complaints about the conditions of his detention because, as already observed above, the domestic authorities failed to adopt any such relevant decision in the applicant’s case (see paragraphs 58-62 above). The Court therefore has no reason to doubt the applicant’s allegation that he had slightly less than three square metres of floor space at his disposal during most of his stay in Pula Prison.

76. Furthermore, the Court notes that the Government did not dispute that the space was further reduced by eight beds and eight cupboards. In the Court’s opinion, the fact that there was such limited personal space was sufficient to create in itself a strong presumption that the conditions of the applicant’s detention failed to meet the requirements of Article 3 (compare Tunis, cited above, § 46). The applicant was confined in those conditions for twenty-two hours a day (compare Longin, cited above, § 60). As a result of his medical condition, which the Government did not dispute, the number of prisoners and the equipment of the cell, he had to endure the humiliation of using a bottle instead of using the toilet, and was subjected to mocking by the other prisoners.

77. Those circumstances are sufficient for the Court to conclude that the effect of the applicant’s confinement must have aroused in him feelings of anguish and inferiority capable of humiliating and debasing him (see Tunis, cited above, § 48). Therefore, particularly in view of the fact that the restrictions of the personal space afforded to the applicant were not compensated for by any freedom of movement during the daytime apart from a two-hour daily exercise, the Court considers that the conditions of the applicant’s detention in Pula Prison from 10 September 2010 to 25 August 2011 amounted to degrading treatment incompatible with the requirements of Article 3 (see Longin, cited above, § 61).

78. There has accordingly been a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION

79. The applicant complained that he had not had a fair trial. He alleged in particular:

(i) that the principle of equality of arms had been violated in that the submission of the State Attorney’s Office of the Republic of Croatia to the Supreme Court during the appeal proceedings had not been communicated to the defence; and

(ii) 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 violation of the principle of equality of arms as regards the submission of the State Attorney’s Office of the Republic of Croatia

1. Admissibility

80. 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

81. Relying on the case of Zahirović (cited above), the applicant contended that the principles of equality of arms and adversarial proceedings required that the submissions of the State Attorney’s Office of the Republic of Croatia lodged before the Supreme Court as the court of appeal 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 had been deficient, as no provision for such a possibility had existed. Thus the defence had had no possibility to have knowledge of and to comment on the submission of the State Attorney’s Office of the Republic of Croatia asking the court to dismiss the defence’s appeal.

82. The Government submitted that on the whole, the proceedings against the applicant had been fair. As regards the submission of the State Attorney’s Office of the Republic of Croatia, 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 opinion. The State Attorney’s Office had not been obliged under domestic law 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 proposed that the appeal lodged by the defence be dismissed. The Supreme Court had relied on nothing which had been adduced from the evidence before the first-instance court and had remained within the boundaries of the applicant’s appeal. Thus the submission of the State Attorney’s Office of the Republic of Croatia had not strengthened the position of the prosecution.

(b) The Court’s assessment

83. In the recent case of Zahirović (cited above) the Court reiterated the following general principles:

“45. ... [T]he 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-à-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).

46. 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).

84. Against those principles the Court found that in terms of the domestic system of appeal proceedings, the observations of the State Attorney’s Office of the Republic of Croatia constituted reasoned opinions on the merits of the case, aiming to influence the Supreme Court’s decision by calling for the appeal to be dismissed. Therefore, it did not need to determine whether the omission to communicate the relevant document had been prejudicial to the applicant; the existence of a violation was conceivable even in the absence of prejudice. The Court therefore found a violation of the principle of equality of arms and the right to adversarial proceedings under Article 6 § 1 of the Convention (see Zahirović, cited above, §§ 48 and 49).

85. While the Court welcomes the amendments to the relevant domestic law following the Zahirović judgment, removing any such inequality of the parties in the appeal proceedings (see paragraph 37 above), it notes that the previous legislation and practice, as in Zahirović (see paragraph 35 above; and Zahirović, cited above, § 25), was applicable to the applicant’s case. It thus sees no reason to depart from its findings in the Zahirović judgment.

86. There has therefore been a violation of Article 6 § 1 of the Convention.

B. The applicant’s absence from the appeal hearing before the Supreme Court

1. Admissibility

87. 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

88. The applicant submitted, relying on Zahirović (cited above), that his presence at the appeal hearing had been necessary because the Supreme Court had been called upon to examine all the factual and legal circumstances of the case. Moreover, the case had concerned serious offences which the applicant had disputed from the very beginning of the proceedings and it had therefore been incumbent on the Supreme Court to secure his presence and to hear his case directly at the appeal hearing.

89. The Government argued that under the relevant domestic law the Supreme Court had had discretion to decide whether it had been expedient to allow an accused who was in detention and was represented by a lawyer to attend an appeal hearing in person, which had been the situation in the present case. Throughout the first-instance proceedings, in which he had duly participated, the applicant had been represented by a lawyer and in his appeal against the first-instance judgment he had simply reiterated the arguments put forward in his defence before the first‑instance court. Given that he had been effectively represented by a lawyer at the appeal hearing, he had not been placed in an disadvantageous position vis-à-vis the prosecution. In those circumstances, the Supreme Court had correctly held that there was no reason for the applicant to attend the appeal hearing. In the Government’s view, that had been consonant with the Court’s case-law. It had been also in compliance with the requirement of overall fairness of the proceedings, an issue that had 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

90. 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 a 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).

91. 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).

92. 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, for example, Dondarini v. San Marino, no. 50545/99, § 27, 6 July 2004, and Zahirović, cited above, § 56).

93. The Court also reiterates that the principle of equality of arms is one of the features of the wider concept of a fair trial. It requires that each party to the proceedings to be given a reasonable opportunity to present his or her case under conditions that do not place him or her at a disadvantage vis‑à‑vis the opponent (see, inter alia, Abdulgadirov v. Azerbaijan, no. 24510/06, § 37, 20 June 2013).

(ii) Application of these principles to the present case

94. 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 being vested with a certain scope of jurisdiction (see paragraph 35 above; Article 16 and 20 of the Code of Criminal Procedure). In the present case the Zadar County Court acted as the court of first instance after the Zadar County State Attorney’s Office had indicted the applicant on charges of rape and indecent behaviour. Following the judgment adopted at first instance by the Zadar 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 event, was competent as a second-instance court to examine all aspects of the case, including the issue of the applicant’s guilt and sentence.

95. Thus, when the applicant lodged his appeal on 28 May 2010 alleging numerous substantive and procedural flaws in the first-instance judgment (see paragraph 9 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 35; 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 35 above), it could uphold, quash or reverse the first-instance judgment.

96. The Court observes that under the domestic law in force at the time of the proceedings at issue, in appeal proceedings in respect of cases subject to public prosecution, the entire case file and the parties’ submissions had to 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 35; Article 373 § 1 of the Code of Criminal Procedure) – and the State Attorney’s Office had to be notified of the session of the appeal panel (see paragraph 35; 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 35; Article 374 § 1 of the Code of Criminal Procedure). In addition, the domestic law provided that if the accused was in detention, the president of the appeal panel would ensure his presence only if he considered it to be expedient (see paragraph 35; Article 374 § 2 of the Code of Criminal Procedure).

97. In the present case the Supreme Court invited and heard the Deputy State Attorney and the defence lawyer at the appeal hearing but decided that the applicant, who had also expressly requested that, would not be present (see paragraphs 9 and 11 above). Having examined all the facts and legal issues submitted by the parties, the Supreme Court dismissed the applicant’s appeal as ill-founded, reversing only the legal classification of the cumulative offences to one continuous act of sexual intercourse with a child and sentencing the applicant to twelve years’ imprisonment.

98. In those circumstances, the Court finds it of central importance that in his appeal the applicant contested the charges and his conviction, as well as the sentence imposed, on factual and legal grounds. He submitted, in particular, that he had not had an opportunity to effectively challenge the victim and the witnesses during the trial, that a psychologist expert report had not been properly drafted, that the judgment had lacked the relevant reasoning and that the trial bench had erred in its factual findings, leaving some crucial facts undetermined (see paragraph 9 above).

99. Thus the Supreme Court was called upon to make a full assessment of the applicant’s guilt or innocence regarding the charges against him in view of not only the arguments he had adduced before the first-instance court but also the arguments concerning the alleged failures of that court to establish all the relevant facts and to apply the relevant substantive and procedural rules correctly (compare Abdulgadirov, cited above, § 42, and Kozlitin v. Russia, no. 17092/04, § 63, 14 November 2013; and contrast Fejde v. Sweden, 29 October 1991, § 33, Series A no. 212‑C, and Hermi, cited above, § 85). Furthermore, the Court takes into account that the appeal proceedings were of importance for the applicant as he had been charged with a very serious crime carrying a significant degree of stigma, for which he had been sentenced to a term of imprisonment (compare Goldmann and Szénászky v. Hungary, no. 17604/05, § 20, 30 November 2010; Kozlitin, cited above, § 64; and contrast Fejde, cited above, § 33).

100. In view of these findings, it is irrelevant that the appeal was lodged only by the applicant, or that the Supreme Court amended the first-instance judgment in a manner and to an extent favourable to the applicant. That did not affect the principal question brought before the Supreme Court, namely whether the applicant was guilty or innocent, which, in order for the trial to be fair, required his presence at the appeal hearing (see, mutatis mutandis, Ekbatani, cited above, §§ 32 and 33; Kozlitin, cited above, §§ 21 and 65; and Sándor Lajos Kiss v. Hungary, no. 26958/05, § 26, 29 September 2009).

101. Against the above background, having regard to the fact that the Supreme Court, as the second-instance court, had jurisdiction to review the case as to both the facts and 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. 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.

102. Accordingly, the Court finds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

103. 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

104. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.

105. The Government considered this claim excessive, unfounded and unsubstantiated.

106. 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 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.

B. Costs and expenses

107. The applicant also claimed EUR 4,125.68 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.

108. The Government considered this claim unfounded and unsubstantiated.

109. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,125.68 plus any tax that may be chargeable to the applicant, covering costs under all heads.

C. Default interest

110. 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. Decides to join to the merits of the applicant’s complaint of lack of an effective remedy the Government’s objection as to the exhaustion of domestic remedies in respect of the complaint about conditions of detention, and rejects it;

2. Declares the applicant’s complaints admissible;

3. Holds that there has been a violation of Article 13 in conjunction with Article 3 of the Convention;

4. Holds that there has been a violation of Article 3 of the Convention;

5. 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;

6. 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;

7. 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 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,125.68 (four thousand one hundred and twenty-five euros and sixty-eight cents), 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.

Done in English, and notified in writing on 4 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

Full & Egal Universal Law Academy