Communicated on 11 May 2015
FIRST SECTION
Application no. 13769/15
Željko GREGAČEVIĆ
against Croatia
lodged on 13 March 2015
STATEMENT OF FACTS
The applicant, Mr Željko Gregačević, is a Croatian national, who was born in 1974. He is represented before the Court by Mr P. Sabolić, a lawyer practising in Osijek.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 10 July 2012, in the case of Gregačević v. Croatia, no. 58331/09, the Court found a violation of the applicant’s right to adequate time and facilities to prepare his defence, under Article 6 §§ 1 and 3(b) of the Convention, in the criminal proceedings against him before the Osijek Municipal Court (Općinski sud u Osijeku).
The judgment became final on 10 October 2012 of which the applicant was informed on 22 October 2012 by a letter from the Court.
On 12 November 2012 the applicant, through his lawyer, requested a reopening of the case on the basis of the Court’s final judgment, as provided under the relevant domestic law.
On 18 January 2013 the Osijek Municipal Court rejected the applicant’s request on the grounds that the Court’s decision became final on 10 October 2012 and that he lodged his request for reopening of the proceedings on 12 November 2012, thus out of the thirty-day time-limit as provided under Article 502 § 3 of the Code of Criminal Procedure (as provided by the 2008 and 2011 amendments).
This decision was upheld on appeal by the Osijek County Court (Županijski sud u Osijeku) on 22 March 2013.
The applicant then challenged these decisions by lodging a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) arguing that his request for reopening of the proceedings had been arbitrarily rejected.
On 18 February 2014 the Constitutional Court quashed the lower courts’ decisions and remitted the case. It found, referring to its established case-law, that the lower courts relied on the thirty-day time-limit introduced by the 2011 amendments to the Code of Criminal Procedure while applying it retroactively to the applicant’s case (which was originally conducted under the old 1997 Code of Criminal Procedure) as provided for under the 2008 Code of Criminal Procedure. In these circumstances, the Constitutional Court held that it was necessary to clarify the applicability of the relevant domestic law to the applicant’s request for reopening of the proceedings. It also ordered the lower courts to establish the exact date when the applicant received the information about the finality of the Court’s judgment.
On 3 April 2014 the Osijek Municipal Court rejected the applicant’s request for the reopening of the case. It established that the applicant had received the information from the Court about the finality of the judgment on 22 October 2012, but nevertheless held that the thirty-day time-limit should be calculated from the moment of the finality of the judgment. Since it was 10 October 2012, and given that the request had been lodged on 12 November 2012, it followed that it was lodged out-of-time, as provided under the 2008 and 2011 Code of Criminal Procedure. No reasoning was provided as to the applicable law to the applicant’s case, as instructed by the Constitutional Court.
This decision was upheld on appeal by the Osijek County Court on 13 June 2014.
The applicant then challenged these decisions by lodging a constitutional complaint before the Constitutional Court and on 13 November 2014 the Constitutional Court declared it inadmissible as manifestly ill-founded.
The decision of the Constitutional Court was served on the applicant’s representative on 19 November 2014.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012, 56/2013, 145/2013 and 152/2014) 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 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).”
COMPLAINT
The applicant complains, under Articles 6 § 1 and 13 of the Convention, about the lack of fairness of the proceedings for reopening of the criminal proceedings against him on the basis of the Court’s final judgment.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention under its civil or criminal head applicable to the proceedings in the present case (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 44-50, 5 February 2015)?
2. Did the applicant have a fair hearing in the determination of his civil rights and obligations or the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular:
- did he have access to a court concerning his request for reopening of the proceedings; and
- did the domestic courts provided sufficient reasoning for their decisions rejecting his request for reopening of the proceedings?
The Government are requested to submit two copies of all relevant documents concerning the applicant’s request for reopening of the proceedings.
Full & Egal Universal Law Academy