CASE OF PULJIĆ v. CROATIA

FIRST SECTION

CASE OF PULJIĆ v. CROATIA

(Application no. 46663/15)

JUDGMENT
 

STRASBOURG

8 October 2020

This judgment is final but it may be subject to editorial revision.

In the case of Puljić v. Croatia,

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

Pere Pastor Vilanova, President,
Jovan Ilievski,
Raffaele Sabato, judges,
and Renata Degener, Deputy Section Registrar,

Having regard to:

the application 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 Denis Puljić (“the applicant”), on 18 September 2015;

the decision to give notice to the Croatian Government (“the Government”) of the complaint concerning the applicant’s inability to examine a witness in criminal proceedings against him, and declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 15 September 2020,

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

INTRODUCTION

The present case concerns criminal proceedings against the applicant on charges of preventing the implementation of measures for the protection of a child. His conviction was based on statements given by his then wife and an employee of a social welfare centre, Mr H.M. The latter gave his statement to the prosecution only and was not heard at the applicant’s trial.

THE FACTS

1.  The applicant was born in 1967 and lives in Zagreb. The applicant was represented by Ms V. Drenški Lasan, a lawyer practising in Zagreb.

2.  The Government were represented by their Agent, Ms Š. Stažnik.

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

4.  On 28 September 2009 a certain S.P. instituted divorce proceedings against the applicant seeking custody of their son.

5.  On 13 October 2011 the Novi Zagreb Office of the Zagreb Social Welfare Centre (Centar za socijalnu skrb Zagreb, Ured Novi Zagreb) submitted a proposal to the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) to institute criminal proceedings against the applicant on charges of preventing the implementation of measures for the protection of a child.

6.  On 15 November 2011 H.M., the head of supervision of parental care at the Zagreb Social Welfare Centre and a witness, was interviewed before the Zagreb Municipal State Attorney’s Office. Neither the applicant nor his lawyer was present.

7.  On 30 March 2012 the applicant was indicted in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) on charges of preventing the implementation of measures for the protection of a child, in particular, refusing to cooperate with the head of supervision of parental care appointed in his case.

8.  During his trial before the Zagreb Municipal Criminal Court the applicant refused to give oral evidence, but the statement he had given before the Zagreb Municipal State Attorney’s Office on 3 November 2011 was read out instead.

9.  On several occasions throughout the proceedings the applicant unsuccessfully challenged the impartiality of all the judges of the Zagreb Municipal Criminal Court and all the employees of the Zagreb Municipal State Attorney’s Office.

10.  The Zagreb Municipal Criminal Court held a number of hearings in the case. At a hearing held on 3 March 2014 the court was to hear the witnesses S.P. and H.M. H.M. did not appear because a summons had not been properly served on him. After S.P., the applicant’s then wife, had given her oral testimony, the State Attorney’s Office withdrew its earlier motion that H.M. be heard in person, deeming the facts sufficiently established. The applicant, who was not represented by a lawyer at that hearing, insisted that H.M. be heard in person, but the trial court rejected his request and decided to admit the record of H.M.’s statement which had been given before the Zagreb Municipal State Attorney’s Office on 15 November 2011 (see paragraph 6 above). Neither party objected to the statement of H.M. which was read out.

11.  On the same day the Zagreb Municipal Criminal Court found the applicant guilty as charged and sentenced him to of one year’s imprisonment suspended for a three-year probation period. The finding of guilt in respect of the applicant was based primarily on the evidence given by H.M. and the applicant’s then wife S.P. The trial court held that from their two statements it was clear that the applicant had committed the criminal offence in question. The relevant part of the first-instance judgment reads:

“Based on the facts of the case which have thus been established, the court has found that [the applicant] committed the criminal offence he was charged with. This finding of the court relies primarily on the statements provided by S.P. and the statement provided by the witness H.M. which was read out, [a statement] to which the parties had no objections and which actually supplements S.P.’s statement. It should be stressed that the court gave [the applicant] several opportunities to present his defence, which he refused to do, stating that there was the mafia on one side and the court on the other, that he was not stupid ... [and] that he had been defamed. In these proceedings, he refused to state his plea, which was, in accordance with the Criminal Procedure Act, interpreted by the judge as a not guilty plea ...”

12.  On 9 April 2011 the applicant lodged an appeal, arguing, inter alia, that H.M. had never been summoned to any hearing during his trial before the Zagreb Municipal Criminal Court, and that he had not had the opportunity to examine him. On 9 January 2015 the Zagreb County Court (Županijski sud u Zagrebu) dismissed the applicant’s appeal as ill-founded, upholding the first-instance judgment. The relevant part of the second-instance judgment reads as follows:

“The [applicant] is not correct to allege ... that there were unlawful procedural acts and omissions because he was not able to question the witness H.M., as he did not object to the statement of H.M. being read out ...”

13.  On 24 March 2015 the applicant lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that he had not had a fair trial, as he had not been given an opportunity to question H.M.

14.  On 13 May 2015 the Constitutional Court rejected the applicant’s constitutional complaint as manifestly ill-founded. That decision was served on the applicant’s counsel on 29 May 2015.

RELEVANT LEGAL FRAMEWORK

15.  The relevant provision of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/08, 76/09, 80/11, 91/12, 56/13 and 145/13) reads as follows:

Article 431

“(1)  Records containing the statements of witnesses ... may be read out following a decision given by a [trial] panel only in the following circumstances:

...

6)  if the parties agree that the direct examination of a witness or expert witness who has failed to appear, irrespective of whether he has been summoned or not, may be replaced by the records of his previous testimony being read out;

...”

16.  Other relevant domestic law provisions and practice are set out in the case of Paić v. Croatia, no. 47082/12, §§16 and 20, 29 March 2016.

THE LAW  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (D) OF THE CONVENTION

17.  The applicant complained that he had not had a fair trial in that he had not been given the opportunity to examine a witness against him. He relied on Article 6 §§ 1 and 3 (d) 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:

...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”Admissibility

18.  The Court notes that this complaint 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.MeritsThe parties’ arguments

19.  The applicant argued that despite the fact that H.M. had been the decisive prosecution witness, the Zagreb Municipal Criminal Court had not allowed him to be examined at the trial. Since neither the applicant nor his lawyer had been present when H.M. had given his statement before the competent State Attorney, the applicant had therefore been deprived of his right to cross-examine him.

20. The Government submitted that the applicant had had the opportunity to present evidence and his arguments and he had used those opportunities in the manner he had deemed best. All of his objections had been properly addressed by the national courts and the proceedings against him had been fair overall.

21.  As regards the statement given by H.M., the Government argued that the national courts had given adequate reasons for their decision not to examine that witness at the applicant’s trial. It was evident from the record of the hearing of 3 March 2014 that the dismissal of the applicant’s complaint had relied entirely on the facts of the case, and that the applicant had had no objections regarding the statement of H.M. which had been read out; it had been detailed and precise and therefore credible. Furthermore, the Government submitted that the statement had not been crucial for the applicant’s conviction, but had merely complemented the statement of the applicant’s wife, S.P.The Court’s assessment

(a)   General principles

22.  The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision, and that the general principles concerning this issue are set out in the cases of Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-131, ECHR 2015, and Paić, cited above, §§ 26-31.

(b)   Application of these principles to the present case

(i)  Whether there was a good reason for the non-attendance of the witness H.M. at the trial

23.  The Court reiterates that good reason for the absence of a witness must exist from the trial court’s perspective, that is to say, the court must have had good factual or legal grounds for not having been able to secure the witness’s attendance at trial. If there was a good reason for the witness’s non-attendance in that sense, it follows that there was a good reason, or justification, for the trial court to admit the untested statements of the absent witness as evidence (see Schatschaschwili, cited above, § 119).

24.  On the facts of the present case, it appears that H.M. did not attend the applicant’s trial simply because a summons for the hearing had never been properly served on him. After S.P. had given her testimony, the State Attorney’s Office withdrew the proposal that H.M. be heard in person, whereas the applicant explicitly maintained that H.M. should be heard, but his proposal was dismissed (see paragraph 10 above). There is nothing in the case file to suggest that the trial court would have had any problems ensuring H.M.’s presence at the trial or his oral questioning.

25.  In light of the foregoing, the Court considers that the first-instance court did not provide a good reason for the non-attendance of H.M. at the trial against the applicant.

(ii)   Whether the evidence of the absent witness was the sole or decisive basis for the applicant’s conviction

26.  As regards the question of whether or not the evidence of the absent witness whose statement was admitted in evidence constituted the sole or decisive basis for the applicant’s conviction, the Court has held that the term “sole” evidence is to be understood to mean the only evidence against the accused (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 131, ECHR 2011). “Decisive” evidence should be narrowly interpreted as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case (see Schatschaschwili, cited above, § 123).

27.  In the present case, the trial court clearly stated that its conclusions were based on the witness statements of S.P. and H.M and that H.M.’s “actually supplement[ed] S.P.’s statement” (see paragraph 11 above).In these circumstances, the Court cannot but conclude that H.M.’s witness statement constituted decisive evidence on which the national courts based their finding of guilt in respect of the applicant.

(iii)  Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured

28.  The Court must further determine whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured as a result of the admission of the decisive evidence of the absent witness. The following elements have been identified by the Grand Chamber in the case of Schatschaschwili as being relevant in this context: the trial court’s approach to the untested evidence, the availability and strength of further incriminating evidence, and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine witnesses at the trial (see Schatschaschwili, cited above, § 145).

29.  The Court notes that in the national courts’ judgments there is no indication that they approached the statement given by H.M. with any specific caution, or that the fact that he was an absent witness prompted the national courts to attach less weight to his statement (compare, for instance, Al-Khawaja and Tahery, cited above, § 157, and Bobeş v. Romania, no. 29752/05, § 46, 9 July 2013). On the contrary, the first-instance court explicitly stated that its conclusions relied primarily on S.P.’s testimony and H.M.’s statement which had been read out (see paragraph 11 above).

30.  As regards the strength of further incriminating evidence, the Court observes that the national courts had before them an additional incriminating piece of evidence, which was the testimony of the applicant’s then wife, S.P. In this connection, the Court cannot but note that at the time of her testimony, S.P. and the applicant were going through divorce proceedings which included the issue of custody of their son (see paragraph 4 above), and the criminal proceedings in question came about in the context of those divorce proceedings. Particular attention should therefore have been paid to the reliability of S.P.’s testimony.

31.  It is true that the applicant had the opportunity to give his own version of the events and thereby cast doubt on the credibility of H.M. as a witness, and that he did not avail himself of that opportunity (see paragraph 11 above). However, the fact that the applicant had such an opportunity could in any event not be regarded as a sufficient counterbalancing factor to compensate for the handicap under which the defence laboured (see Paić, cited above, § 51). The fact remains that neither the applicant nor his lawyer had the opportunity to examine H.M. at any stage of the proceedings, since they were not invited to attend his questioning before the State Attorney’s Office (see paragraph 6 above) and H.M. was never heard by the trial court.

32.  Bearing in mind that the applicant insisted on H.M. being heard by the trial court, it cannot be concluded that the applicant waived his right to question that witness (see, among many other authorities, Gabrielyan v. Armenia, no. 8088/05, § 85, 10 April 2012).

33.  In view of the above, in particular the importance of H.M.’s testimony to the offence of which the applicant was convicted, and examining the fairness of the proceedings as a whole, the Court considers that the lack of any counterbalancing measures to compensate for the handicap encountered by the applicant in defending himself before the trial court did not permit a fair and proper assessment of the reliability of the untested evidence in his case.

34.  Accordingly, there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

35.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Damage

36.  The applicant claimed 3,000 euros (EUR) in respect of non-pecuniary damage.

37.  The Government contested that claim.

38.  The Court firstly notes that the applicant has the possibility of seeking a fresh trial (under Article 502 of the Code of Criminal Procedure). However, the Court takes the view that the applicant has suffered some non-pecuniary damage as a result of the violation found which cannot be made good by the Court’s mere finding of a violation. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.Costs and expenses

39.  The applicant also claimed 6,750 Croatian kunas (approximately EUR 920) for the costs and expenses incurred before the Constitutional Court, and EUR 2,000 for those incurred before the Court.

40.  The Government contested those claims.

41.  Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the claimed sum in full, plus any tax that may be chargeable to the applicant.Default interest

42.  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,Declares the application admissible;Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:

(i)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,920 (two thousand nine hundred and twenty 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;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 8 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Renata Degener Pere Pastor Vilanova
Deputy RegistrarPresident

 

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