CASE OF PETRINA v. CROATIA

FIRST SECTION

CASE OF PETRINA v. CROATIA

(Application no. 31379/10)

JUDGMENT

STRASBOURG

13 February 2014

FINAL

13/05/2014

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

In the case of Petrina 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,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 21 January 2014,

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

PROCEDURE

1. The case originated in an application (no. 31379/10) 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 Stipe Petrina (“the applicant”), on 25 May 2010.

2. The applicant was represented by Mr A. Korljan, a lawyer practising in Zadar. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant alleged, in particular, that he had been convicted in criminal proceedings without having had an opportunity to appear at the hearing.

4. On 21 March 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1954 and lives in Primošten.

6. On 31 March 2003 the Šibenik Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Šibeniku) indicted the applicant in the Šibenik Municipal Court (Općinski sud u Šibeniku) on charges of attempted grievous bodily harm.

7. The first hearing before the Šibenik Municipal Court was scheduled for 16 March 2006.

8. On the day of the hearing, the applicant informed the Šibenik Municipal Court that he was unable to appear at the hearing owing to a medical condition. He also submitted medical documentation in that regard.

9. Several witnesses also failed to attend the hearing and the applicant’s lawyer informed the trial court that she no longer represented the applicant. The hearing was adjourned and the next hearing was scheduled for 26 April 2006.

10. At the hearing of 26 April 2006 the applicant, who was not properly summoned, failed to appear. The president of the trial panel ordered that the applicant be summoned by a letter indicating that his defence lawyer no longer represented him and that he should either appoint another lawyer or the hearing would be held in the absence of a lawyer.

11. On 22 May 2006 the applicant informed the Šibenik Municipal Court that he was not able to appear for trial owing to his medical condition. He explained that he would be unavailable for a certain period of time because he was required to undergo medical treatment and promised to inform the court of the progress of that treatment. He therefore asked that the proceedings be stayed until he was able to appear at the hearings. The applicant also submitted back-up medical documentation.

12. At a hearing on 23 May 2006 the Deputy State Attorney asked the trial court to commission a medical report concerning the applicant’s capacity to take part in the proceedings given his state of health.

13. On 30 May 2006 a medical expert, M.D.G., submitted a report indicating that the applicant suffered from heart arrhythmia. She considered that he would not be able to take part in the hearings for a period of time which was hard to predict. She therefore suggested that the trial court re-examine his condition after a month.

14. On 11 August 2006 the Šibenik Municipal Court invited the applicant to submit medical documentation noting the progress of his treatment.

15. The applicant complied with the order and submitted the documentation on 16 August 2006. The Šibenik Municipal Court then commissioned another medical report.

16. On 13 September 2006 medical expert M.D.G. submitted a further report, indicating that the applicant’s state of health had not stabilised despite the medical treatment he had been receiving and that he could not appear at the hearings. She reiterated that it was not possible to predict the exact period of time in which he would not be able to take part in the proceedings and suggested that his condition be reassessed at appropriate intervals.

17. Another medical report was commissioned on 13 March 2007 from a forensic expert, a cardiologist and a psychiatrist.

18. On 15 April 2007 the medical experts, M.D.G., D.M. and D.B., submitted a joint report. They found that the applicant was not able to take part in the hearings and that a strong triggering factor, such as stress, could lead to a heart attack with a possibly fatal outcome.

19. On 23 April 2007 the Šibenik Municipal Court commissioned a further medical report from medical experts M.D.G., D.M. and D.B.

20. The medical experts submitted their report on 19 June 2007, in which they noted:

“... we still consider that the accused’s appearance at the hearing would be a risk factor which could (although it might not) lead to a heart attack, and how that will further develop it is hard to predict, which makes Stipe Petrina theoretically unable to appear at the hearing.

However, we consider that his appearance at the hearing would be possible only in the presence of [a] doctor, namely a medical team equipped for prompt intervention in the event of a heart attack at the trial.”

21. The Šibenik Municipal Court scheduled a hearing for 20 November 2007. It summoned the applicant, the applicant’s lawyer, B.B., whose services he had engaged on 11 October 2007, and a cardiologist, A.S., to the hearing.

22. At a hearing on 20 November 2007 the Šibenik Municipal Court noted that the applicant’s defence lawyer had informed it on 19 November 2007 that she could not attend the hearing because she was on maternity leave. The applicant was not properly summoned and did not attend the hearing. The cardiologist, A.S., did not attend the hearing, nor did he excuse his absence. The hearing was adjourned and the next hearing was scheduled for 19 December 2007.

23. On 13 December 2007 the applicant informed the Šibenik Municipal Court that he could not appear at the hearing scheduled for 19 December 2007 due to his medical condition. He referred to the medical expert report of 19 June 2007.

24. On 19 December 2007 the Šibenik Municipal Court, relying on Article 10 of the Code of Criminal Procedure (see paragraph 34 below), dismissed the applicant’s request for adjournment as abusive on the grounds that the necessary medical back-up had been secured by summoning the cardiologist, A.S., to the hearing. The court considered that the applicant was trying to delay the proceedings. It also found that, according to the information available to it, the applicant had taken part in a number of other court proceedings as claimant and private prosecutor.

25. On the same date, the Šibenik Municipal Court held a hearing at which the applicant did not appear and to which his defence counsel had not been summoned. The cardiologist, A.S., again did not attend the hearing, nor did he excuse his absence. The hearing was held in the presence of the Deputy State Attorney and the victim’s representative. After the hearing, at which the trial court examined the evidence and written records of witnesses’ oral statements, it found the applicant guilty as charged and sentenced him to four months’ imprisonment, suspended for one year.

26. On 27 June 2008 the applicant lodged an appeal before the Šibenik County Court (Županijski sud u Šibeniku) against the decision to hold a hearing in his absence. The applicant complained that he had not been able to appear at the hearing owing to his medical condition and that the trial court’s findings that he had taken part in a number of other court proceedings had been unsubstantiated and untrue, as while he had been a party to the other proceedings he had never taken part in the trials.

27. On 17 and 18 July 2008 the applicant lodged further statements of appeal before the Šibenik County Court asking that court to quash the first-instance judgment and to order a retrial. He reiterated that the hearing of 19 December 2007 had been held in his absence, even though he had not been able to appear at the hearing owing to his medical condition. He also complained that the necessary medical back-up at the hearing had not been ensured, as a medical team had never been obtained and the cardiologist, A.S., had twice failed to attend the hearings. Moreover, the defence had never been informed that a back-up medical team would be provided, and had the trial court considered that he was abusing his procedural rights, it should have ensured that he had legal representation at the trial.

28. During the appeal proceedings, the Šibenik County State Attorney’s Office (Županijsko državno odvjetništvo u Šibeniku), which represented the prosecution case on appeal, asked the Šibenik County Court to allow the applicant’s appeal and to order a retrial.

29. On 10 October 2008 the Šibenik County Court, in closed session, without holding a hearing, dismissed all the appeals and upheld the first-instance judgment. That court found that the applicant had been abusing his procedural rights and that he had been doing nothing more than trying to delay the trial.

30. On 10 February 2009 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) complaining that the hearing before the first-instance court had been held in his absence.

31. On 29 April 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded.

II. RELEVANT DOMESTIC LAW

A. Constitution

32. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010) reads as follows:

Article 29

“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.

In respect of any criminal charge brought against him, the suspect, defendant or accused shall have the following rights ...

- to be tried in his presence, if he is available to the court...”

B. Criminal Code

33. The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001) provide:

Article 98

“(1) Anyone who inflicts grievous bodily harm on another or seriously impairs another’s health shall be sentenced to imprisonment for a term from three months to three years.

...

(4) An attempt of the offence under paragraph 1 of this Article shall be also punishable.”

C. Code of Criminal Procedure

34. The relevant provisions of the Code of Criminal Procedure in force at the time (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 63/2002, 62/2003 and 115/2006) provided:

Article 10

“...

(2) The court shall conduct the proceedings without delay and it shall prevent any abuse of process by the participants.

(3) The court shall, by issuing an order, prevent any action of a party, defence lawyer, victim or his or her representative, obviously aimed at the abuse of rights under this Code. An appeal against the order shall not have suspensive effect.

(4) In case of the application of paragraph 3 of this Article, upon the motion of the investigating judge or the president of the trial panel, the president of the court shall appoint a legal aid lawyer to represent the defendant.”

Head XXVI

SUMMARY PROCEDURE

Article 430

“In proceedings before the municipal courts for offences punishable by a fine or up to five years’ imprisonment, the provisions of Articles 431-445 of this Code shall be applicable, and if they do not regulate a specific situation, the other provisions of this Code shall be applicable.”

Article 438

“(1) The judge (president of the trial panel or a single judge) shall summon to the hearing the defendant and his defence lawyer, the victim and his representative, witnesses, [any] expert witnesses and interpreter, and obtain all items [of evidence] that will be examined at the hearing.

(2) ... In the letter summoning the defendant he shall be warned that a hearing might be held in his absence if the necessary conditions are met (Article 441 § 3). ...”

Article 441

“ ...

(3) The court may decide to hold a hearing in the absence of the defendant if he fails to appear although he had been properly summoned or could not be summoned due to his failure to inform the court about a change of address, and if his presence is not necessary and he has been questioned and entered his plea on the charges.”

35. The relevant provisions of the amended Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012) provide:

Article 502

“...

(2) The provisions concerning the reopening of criminal proceedings shall be applicable in case of a request for revision of any final court decision in connection with a final judgment of the European Court of Human Rights by which, in respect of the defendant, a violation of the rights and freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms has been found.

(3) A request for reopening of proceedings in connection with a final judgment of the European Court of Human Rights can be lodged within a thirty-day time-limit starting from the date on which the judgment of the European Court of Human Rights becomes final.”

Article 574

“...

(2) If prior to the entry into force of this Code a decision was adopted against which a legal remedy is allowed pursuant to the provisions of legislation relevant to the proceedings [in which the decision was adopted], ... the provisions of that legislation shall be applicable [to the proceedings concerning the remedy], unless otherwise provided under this Code.

(3) Articles 497-508 of this Code shall accordingly be applicable to requests for the reopening of criminal proceedings made under the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, and 115/2006).”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

36. The applicant complained that he had been convicted in the criminal proceedings without having had an opportunity to appear at the hearing. He relied on Article 6 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 [a] ... tribunal ...

...

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. Admissibility

37. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

38. The applicant submitted that the medical expert reports commissioned during the proceedings had clearly indicated that he had not been able to take part in the hearings owing to his state of health. His appearance at court would only have been possible had the Šibenik Municipal Court ensured the presence of a medical team at the trial, which it had failed to do. It had summoned doctor A.S., who had not only never appeared at the hearings but whose presence would in any event have been insufficient to meet the requirements set out in the medical reports. Thus, in the applicant’s view, the mere summoning of doctor A.S. had not satisfied the requirement of effective medical care being made available at the hearings. Moreover, there had been no good reason for holding a hearing in the absence of his defence lawyer. As to the domestic courts’ reference to the fact that he had been involved in other proceedings at the same time, the applicant asserted that while it was true that he had been a party to several sets of proceedings he had never attended the court hearings in those cases and had always been represented by a lawyer.

39. The Government argued that the applicant had had every opportunity to take part in the hearings. He and his lawyer had been duly summoned to the court hearings and the Šibenik Municipal Court had ensured the presence of a doctor, as required by the medical expert reports. There had therefore been no reason for the applicant not to appear. The Government pointed out that the medical expert reports had indicated that the applicant had been suffering from health problems of a temporary nature and not that he was permanently unable to attend court hearings. The report of 19 June 2007 had therefore indicated that the applicant could attend the court hearings if the necessary medical support was available. In the Government’s view, it had been for the domestic courts to assess whether there had been a good reason for the applicant not to appear at the hearings and accordingly to take the necessary measures under applicable domestic law, which, given that the applicant was being tried as an accused under summary procedure, had allowed the court to hold a hearing in his absence. In particular, the trial court had had to conduct the proceedings before it efficiently and to prevent any unjustified obstruction of the process. It had therefore had the ability to refuse a request for the adjournment of the hearings, particularly when the circumstances had suggested that the applicant had decided not to appear. The Government considered that the applicant had attempted to delay the proceedings in order that the prosecution became time-barred. As to the fact that the applicant’s lawyer B.B. had not been summoned to the hearing of 19 December 2007, the Government pointed out that the applicant had engaged her services at the time when it had been obvious that she could not attend the hearings because she was on maternity leave and therefore considered that there had been no reason for the trial court to summon her to the hearing. Lastly, the Government pointed out that the criminal proceedings against the applicant, taken as a whole, had been fair.

2. The Court’s assessment

(a) General principles

40. The Court will examine the complaint under the provisions of paragraphs 1 and 3 of Article 6 taken together, which are to be seen as particular aspects of the right to a fair trial (see, for example, Krombach v. France, no. 29731/96, § 82, ECHR 2001‑II).

41. The Court notes at the outset that the present case is distinguishable from the cases in which the applicants were not informed of the criminal proceedings against them and where they were tried in absentia (see Goddi v. Italy, 9 April 1984, Series A no. 76; Colozza v. Italy, 12 February 1985, Series A no. 89; and Sejdovic v. Italy [GC], no. 56581/00, ECHR 2006‑II); or in which the applicant absconded and sought to evade trial (see Medenica v. Switzerland, no. 20491/92, ECHR 2001‑VI); and from those in which the applicants were served with notice of the date of the hearing but decided not to appear and later complained about the effectiveness of their legal representation at the hearing (see Poitrimol v. France, 23 November 1993, § 32, Series A no. 277‑A; Lala v. the Netherlands, 22 September 1994, § 30, Series A no. 297‑A; Pelladoah v. the Netherlands, 22 September 1994, § 37, Series A no. 297‑B; and Van Geyseghem v. Belgium [GC], no. 26103/95, § 28, ECHR 1999‑I).

42. In view of the arguments adduced by the domestic authorities (see paragraphs 24, 25 and 29 above) and submitted by the Government, the Court considers that the situation in the present case bears a certain resemblance to those examined by the Court in the cases of Ananyev and Idalov, in which the applicants were prevented from taking part in their respective trials on the grounds of their improper behaviour (see, mutatis mutandis, Ananyev v. Russia, no. 20292/04, § 43, 30 July 2009, and Idalov v. Russia [GC], no. 5826/03, § 175, 22 May 2012).

43. In the Idalov case the Court reiterated that while it is of paramount importance that a defendant in criminal proceedings should be present during his or her trial, proceedings held in the absence of the accused are not always incompatible with the Convention if the person concerned can subsequently obtain from a court which has tried him a fresh determination of the merits of the charge, in respect of both law and fact (see Idalov, cited above, § 170).

44. The proceedings as a whole may be said to have been fair if the defendant was allowed to appeal against the conviction in absentia and entitled to attend the hearing in the court of appeal entailing the possibility of a fresh factual and legal determination of the criminal charge (see Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003).

45. Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. Furthermore, it must not run counter to any important public interest. Nevertheless, before an accused can be said to have, through his conduct, implicitly waived an important right under Article 6 of the Convention, it must be shown that he could reasonably have foreseen the consequences of his conduct in this regard (see Idalov, cited above, §§ 172-173).

46. The Convention leaves Contracting States a wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of Article 6. The Court’s task is to determine whether the standards required under Article 6 were met. In particular, the procedural means offered by domestic law and practice must be shown to be effective where a person charged with a criminal offence has neither waived his right to appear and to defend himself nor sought to evade trial (ibid., § 174).

47. Although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Poitrimol, cited above, § 34). A person charged with a criminal offence does not lose the benefit of this right merely on account of not being present at the trial (see Mariani v. France, no. 43640/98, § 40, 31 March 2005). It is of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal (see Ananyev, cited above, § 41).

(b) Application of these principles to the present case

48. In the instant case the trial was held in the applicant’s absence because the trial court found his failure to appear at the hearing abusive and thus refused to adjourn the hearing. At the same time, the applicant argued that he was not able to appear at the hearing owing to his state of health.

49. The Court notes that, relying on his state of health, the applicant asked the trial court to stay the proceedings until he had finished his medical treatment so that he could appear for trial in person (see paragraph 11 above). His arguments in that regard were supported by three medical expert reports of 30 May 2006, 13 September 2006 and 15 April 2007, which conclusively indicated that he was not able to appear in person for the hearings because he was suffering from heart arrhythmia and that a triggering factor such as stress could lead to an acute heart attack (see paragraphs 13, 16 and 18 above).

50. On the basis of these findings the trial court adjourned several hearings and on 23 April 2007 commissioned another medical report. This report indicated that there was a possibility that the applicant could appear at the hearing but only if medical back-up was available (see paragraph 20 above).

51. The trial court then summoned doctor A.S. to the hearings on 20 November and 19 December 2007. Although the trial court never informed the applicant that the doctor had been summoned, and although in fact doctor A.S. never appeared at the hearings, providing no reasons for his absence (see paragraphs 22 and 25 above), the trial court found the applicant’s absence from the hearing on 19 December 2007 to be abusive. It considered that the applicant’s absence was unjustified since, despite the medical back-up that had been arranged, he had failed to appear at the hearing and because at the same time he had been involved in other court proceedings (see paragraph 24 above). It therefore held the hearing in his absence and convicted him on charges of attempted grievous bodily harm (see paragraph 25 above).

52. The Court has already held that it is essential for the proper administration of justice that dignity, order and decorum be observed in the courtroom as the hallmarks of judicial proceedings. The flagrant disregard by a defendant of elementary standards of proper conduct neither can nor should be tolerated (see Ananyev, cited above, § 44; and Idalov, cited above, § 176). The Court does not find such flagrant disregard for the proper administration of justice by the applicant in the present case.

53. In this respect, the Court observes that the medical experts indicated that the applicant could only appear at the trial without endangering his life if the trial court ensured adequate medical back-up at the hearing. The Court therefore considers, noting that the Contracting States must exercise diligence in order to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner (see Colozza, cited above, § 28), that the mere summoning of a physician to the trial did not meet this requirement, necessary for the applicant’s effective participation in the trial. Even leaving aside the fact that a medical team as indicated in the expert report was not put in place, the physician who was summoned to the hearing never actually attended court nor provided any excuse for his absence.

54. Moreover, as the applicant pointed out in his appeal (see paragraph 27 above), he was never informed that the physician had been summoned to the trial, and thus his relying on the medical expert report indicating that his appearance in court could only be possible in the presence of a medical team in no way signified that he has waived his right to defend himself and to appear before the trial court (see, mutatis mutandis, Zana v. Turkey, 25 November 1997, § 70, Reports of Judgments and Decisions 1997‑VII).

55. The Court also notes that the trial court’s argument that the applicant had been involved in several other proceedings is unsubstantiated. That court provided no reference to the precise proceedings in question or the dates of or circumstances in which the hearings in those proceedings had been held, and neither did the Government furnish any evidence before the Court that the applicant had taken part in a trial in any other set of proceedings. In such circumstances, the applicant’s arguments submitted before the domestic authorities and before the Court (see paragraphs 26 and 38 above) that he had been a party to several proceedings but that he had never taken part in the trials does not appear frivolous and unconvincing.

56. In any event, the Court notes that even if the trial court considered that the applicant had abused his rights by failing to appear at the hearing, and given that the applicant’s lawyer had informed that court that she could no longer represent the applicant (see paragraph 22 above), it was incumbent on the trial court, under the relevant domestic law (see paragraph 34 above; Article 10 § 4 of the Code of Criminal Procedure), to appoint a legal aid lawyer to represent the applicant at trial. The law is clear that a person charged with a criminal offence does not lose the benefit of the right to be represented merely on account of not being present at the trial (see Sejdovic, cited above, § 91). However, the trial court failed to ensure that the applicant had legal representation, which meant that the applicant’s absence from the hearing prevented him from exercising both his right to be present at the trial and to be effectively legally represented thereby upsetting the equality of arms (compare Ananyev, cited above, § 46).

57. The Court must now determine whether the appeal court redressed the violation of the applicant’s right to take part in the trial hearing at first instance (see Idalov, cited above, § 179).

58. The Court observes that in Croatia the jurisdiction of appellate courts extends to both legal and factual issues. The Šibenik County Court thus had full power to review the case at its hearing and to consider all arguments of the parties (for further details of the system of appellate courts in Croatia, see Zahirović v. Croatia, no. 58590/11, §§ 58-60, 25 April 2013). However, the applicant and his defence lawyer were not able to take part in the hearing (see paragraph 29 above) and thus the appeal court failed to cure the defects in the proceedings caused by the trial court. In such circumstances, the only possible means of redressing the defects of the trial proceedings would have been for the appellate court to quash the verdict in its entirety and to refer the matter back for a hearing de novo. By not doing so, the appellate court failed to redress the violation of the applicant’s right to a fair trial (see Idalov, cited above, § 180).

59. The Court therefore finds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

60. Lastly, the applicant complained, relying upon Articles 6 § 3 (a), (b), (c) and (d), and 14 of the Convention, that he had not been properly informed of the charges against him, that he had not been represented by a lawyer of his own choosing, that he had not had an opportunity to question witnesses, and that he had been discriminated against.

61. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded, and must be rejected pursuant to Article 35 § 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

62. 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

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

64. The Government considered the applicant’s claim excessive, unfounded and unsubstantiated.

65. Having regard to all the circumstances of the present case, the Court accepts that the applicant 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 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.

B. Costs and expenses

66. The applicant also claimed 42,758 Croatian kunas (HRK) for costs and expenses incurred before the domestic courts and for those incurred before the Court.

67. The Government considered the applicant’s claim unfounded and unsubstantiated.

68. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. 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 3,300 covering costs under all heads.

C. Default interest

69. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 6 §§ 1 and 3 (c) of the Convention concerning the applicant’s absence from the oral hearing admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

3. 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 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,300 (three thousand three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

 

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