SECOND SECTION
DECISION
Application no. 74272/17
Marica MIĆIĆ
against Croatia
The European Court of Human Rights (Second Section), sitting on 28 March 2023 as a Committee composed of:
Pauliine Koskelo, President,
Lorraine Schembri Orland,
Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 74272/17) 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”) on 12 October 2017 by a Croatian national, Ms Marica Mićić, who was born in 1964 and lives in Koprivnica (“the applicant”) and who was represented by Mr D. Bukovac, a lawyer practising in Zagreb;
the decision to give notice of the application to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the length and alleged unfairness of criminal proceedings against the applicant, in which she was found guilty of fraud for having falsely reported her residence in Zagreb and having claimed undue travel costs from her employer, a public hospital in Koprivnica.
2. On 26 September 2012 at around 7 a.m. the applicant arrived at the Koprivničko-Križevačka police station, where she had been summoned to give a statement about her exact place of residence.
3. After the applicant gave the requested information, the police received an order from the relevant State Attorney’s Office by fax at 9.48 a.m. to question the applicant as a suspect. Officer E.B. questioned her at 11.05 a.m. She admitted that she had a registered residence in Zagreb, but that in reality she lived in Koprivnica and occasionally visited her daughter who was studying in Zagreb. Before her questioning, the applicant was informed of her right to remain silent and to hire a defence attorney, but she declared that she waived her right to a defence attorney and signed a statement of waiver. She also signed the record of her questioning without any objections. A video recording of her testimony was made and provided by the Government.
4. The applicant subsequently hired an attorney and denied all accusations against her in her reply to the indictment lodged with the trial court on 16 November 2012. She submitted that, before her questioning on 26 September 2012, police officer E.B. had pressured her into not hiring an attorney and threatened her with detention if she did not confess to the charges against her. The trial court heard officer E.B., who firmly denied having pressured or threatened the applicant in any way.
5. The trial court heard several other witnesses and examined a number of documents in the case file. Several neighbours from Koprivnica testified that the applicant lived in their building, while a neighbour from Zagreb testified that she had not lived there during the period in question. The court refused the applicant’s motion to hear in person witnesses M.Z. and K.B., whose statements had been taken by the police during the investigation and who had excused their absence from the court hearings for medical reasons.
6. On 9 March 2016 the Koprivnica Municipal Court found the applicant guilty of fraud, sentenced her to eight months’ imprisonment suspended for two years and ordered her to pay back the sums received as travel costs in the amount of approximately 8,000 euros (EUR). The court explained that it had not been necessary to hear witnesses M.Z. and K.B. in person because the facts of the case had been established even without their testimonies, and that hearing them in person would have caused unnecessary costs and protraction of the proceedings. The court also assessed the applicant’s confession during the first police interrogation against her subsequent denial of the charges and explained in detail why it did not accept her latter version of the events, but instead found it unconvincing and illogical. It also found no evidence or reason for officer E.B. to have threatened the applicant or pressured her in any way.
7. On 1 September 2016 the Bjelovar County Court upheld the first instance judgment, confirming that there had been no evidence of undue pressure on the applicant, including in the video recording of her police questioning.
8. The applicant’s subsequent constitutional complaint was dismissed. The Constitutional Court’s decision was served on the applicant on 11 May 2017.
9. The applicant complained, under Article 6 §§ 1 and 3 of the Convention, that she had been pressured into confessing a crime she did not commit during her police questioning, that she had been questioned without the presence of a lawyer and that she had insufficient time for the preparation of her defence. She also complained that her conviction was based on statements of two witnesses who had not been heard at the trial and that the national courts dismissed her request to hear those witnesses without giving sufficient and relevant reasons. Lastly, she complained about the length of the proceedings.
THE COURT’S ASSESSMENT
Fairness of the proceedings10. The applicant raised several complaints concerning the fairness of the criminal proceedings against her, which the Court will examine bearing in mind the relevant general principles summarised in Beuze v. Belgium [GC] (no. 71409/10, §§ 119-50, 9 November 2018) as regards the right of access to a lawyer under Article 6 § 3 (c), Schatschaschwili v. Germany [GC] (no. 9154/10, §§ 100-31, ECHR 2015) as regards the compatibility with Article 6 §§ 1 and 3 (d) of the Convention of proceedings in which statements made by a witness who had not been present and questioned at the trial were used as evidence and Gregačević v. Croatia (no. 58331/09, §§ 49-52, 10 July 2012) as regards the accused’s right under Article 6 § 3 (b) to have “adequate time and facilities for the preparation of his defence”.
11. The applicant’s main grievance concerns the fact that officer E.B. had allegedly pressured her before her first police questioning to refuse legal representation and to confess to having committed fraud. In that connection, the Court notes that the domestic courts examined officer E.B. and provided a detailed and convincing assessment of the applicant’s allegations (see paragraphs 6 and 7 above). They found that officer E.B. had been a professional police officer, who did not know the applicant and had no reason to threaten her. They also concluded that the video recording of her police questioning showed the applicant clearly and calmly answering the questions, without any indication that she had been under undue pressure.
12. The Court would further add that the applicant signed the police record on her police questioning without any complaints or allegations of undue pressure (see paragraph 3 above). Moreover, it transpires from the case file that the applicant for the first time complained about the alleged undue pressure by officer E.B. only about two months later, in her answer to the bill of indictment (see paragraph 4 above). In the absence of any further evidence in support of her allegations, the Court has no reasons to disagree with the above conclusions of the domestic courts.
13. The same holds true for the applicant’s allegations concerning the alleged police pressure into not hiring a defence attorney. Before her police questioning the applicant had been duly informed about her right to legal representation, but she waived that right by signing a document explicitly stating so. Given that the applicant had been informed about her right to an attorney, that she had signed a statement renouncing that right, that she had only complained about alleged pressure against her some two months later and that no indication that there had been undue pressure had been found in the proceedings before the domestic courts, the Court concludes that the applicant explicitly and unequivocally waived her right under Article 6 §§ 1 and 3 (c) to be represented by a lawyer during her questioning by the police (compare Goran Kovačević v. Croatia, no. 34804/14, § 75, 12 April 2018).
14. As regards the applicant’s complaint, which falls to be examined under Article 6 §§ 1 and 3 (d), that she had no possibility to examine witnesses M.Z. and K.B., the Court notes firstly that the trial court explicitly stated that the facts of the case had been sufficiently established even without hearing those two witnesses or taking into account their police statements. However, even assuming that their statements had been taken account of to a certain degree, the Court notes that there had been compelling reasons not to hear those witnesses in person (their respective old age and medical conditions), that their statements were neither the sole nor decisive evidence against the applicant and that there had been sufficient counterbalancing factors to compensate for any handicap the defence may have suffered, notably because the domestic courts had weighty further incriminating evidence before them (see paragraph 6 above, and contrast Paić v. Croatia, no. 47082/12, §§ 41 and 42-48, 29 March 2016; and Dodoja v. Croatia, no. 53587/17, §§ 41 and 47, 24 June 2021).
15. As regards the applicant’s assertion that the domestic courts dismissed her request to hear witnesses M.Z. and K.B. without giving sufficient and relevant reasons, the Court has already established that this had not been the case (see paragraph 14 above). The trial court took note of the witnesses’ medical condition and explained that their testimonies had no longer been necessary in view of the other established facts in the case and that insisting on them would have caused unnecessary costs and further delays in the proceedings.
16. In this respect the Court would reiterate that the admissibility of evidence is primarily a matter for regulation by national law. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among many other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports of Judgments and Decisions 1997‑III). In particular, it is not sufficient for a defendant to complain that he has not been allowed to question certain witnesses; he must, in addition, support his request by explaining why it was important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003-V).
17. In the present case the applicant did not explain why hearing M.Z. and K.B. again, or at all, would have been crucial for the outcome of the case against her, in particular bearing in mind that both witnesses had stated to the police that the applicant did not live at her registered address in Zagreb.
18. Finally, in so far as the applicant may be understood to complain that she did not have sufficient time to prepare her defence, as required by Article 6 § 3 (b), the Court notes that at her first police questioning she had about four hours between being informed about the reasons for her being summoned there and being formally questioned as a suspect by officer E.B. (see paragraph 3 above). During that time, she could have contacted an attorney, which she did not do, and she could have prepared for what to say to the police, or chosen to remain silent, her right of which she had also been informed. During the trial, the applicant also had ample opportunity to get acquainted with the evidence and testimonies against her.
19. In the light of all the material in its possession and assessing the fairness of the proceedings as a whole, the Court finds that these complaints do not disclose any appearance of a violation of Article 6 §§ 1 and 3 of the Convention.
20. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Length of the proceedings21. The Court finds it unnecessary to decide on the Government’s preliminary objection as regards non-exhaustion of domestic remedies, since this complaint is in any event inadmissible for the following reasons.
22. The reasonableness of the length of proceedings, for the purposes of Article 6 § 1, must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant, and of the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
23. In the present case, the proceedings started on 26 September 2012, the date of the applicant’s first questioning by the police, and ended on 11 May 2017, the date of the service of the Constitutional Court’s decision. They thus lasted some four years and seven months before three court instances, a period which cannot be considered excessive.
24. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 April 2023.
Dorothee von Arnim Pauliine Koskelo
Deputy Registrar President